THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 


GIFT  OF 
JANE  K.  SATHER 


IS  DAVIS  A  TRAITOR; 


OR 


WAS  SECESSION  A  CONSTITUTIONAL  RIGHT 


PREVIOUS    TO 


THE  WAR  OF  1861? 


BY 

ALBERT  TAYLOR  BLEDSOE,  A.  M,  LL.  D. 

Late  Professor  of  Mathematics  in  the  University  of  Ya. 


BALTIMORE: 
PRINTED  FOR  THE  AUTHOR,  BY  INNES  &  COMPANY, 

1866. 


Entered  according  to  Act  of  Congress,  in  the  year  1S6(>,  by 

ALBEHT  TAYLOR  BLEDSOE,  A.  M.,  LL.  D., 

In  the  Clerk's  Office  of  the  District  Court  of  the  United  States 

for  the  District  of  Maryland. 


CONTENTS. 


CHAPTER  I. 
Opinions  respecting  Secession  determined  by  passion,  not  by  reason Page      1 

CHAPTEK  II. 
The  Issue  ;  or  Point  in  Controversy <i 


CHAPTER  III. 

"The  Great  Expounder"  scouts  the  idea,  that  the  States  "acceded"  to  the  Consti 
tution 11 

CHAPTER  IV. 
The  first  Resolution  passed  by  the  Convention  of  178? 18 

CHAPTER  V. 

The  Constitution  of  1?87  a  Compact • 21 

CHAPTER  VI. 

The  Constitution  of  178?  a  Compact 30 

CHAPTER  VII. 
The  Constitution  of  178?  a  Compact 


CHAPTER  VIII. 

The  Constitution  of  1787  a  Compact  between  the  States.— The  Facts  of  the  Case 4? 

CHAPTER  IX. 

The  Constitution  a  Compact  between  the  States.— The  Language  of  the  Constitution.    58 

CHAPTER  X. 

The  Constitution  of  178?  a  Compact  between  the  States.— The  Language  of  the  Con 
stitution Gfi 

CHAPTER  XI. 

The  Constitution  of  178?  a  Compart  between  the  States.— The  views  of  Hamilton, 
Madison,  Morris,  and  other  Fnum-rs  of  the.  Constitution 74 


477 


IV  CONTENTS. 

CHAPTER  XII. 

The  Convention  of  1187  describes  the  Constitution  formed  by  them  as  a  Compact 
between  the  States. .  Page    90 

CHAPTER  XIII. 
Mr.  Webster  «.->.  Mr.  Webster. ...  ,94 


CHAPTER  XIV. 

The  absurdities  flowing  from  the  Doctrine  that  the  Constitution  is  not  a  Compact 
between  the  States,  but  was  made  by  the  People  of  America  as  one  Nation  ........  104 

CHAPTER  XV. 
The  Hypothesis  that  the  people  of  America  form  one  Nation  ........  ...................  107 

CHAPTER  XVI. 
Arguments  in  favor  of  the  Bight  of  Secession  .........  .................................  !•>-> 


CHAPTER  XVII. 

Arguments  against  the  Right  of  Secession  ...........................  .................  16;'. 

CHAPTER  XVIII. 
Was  Secession  Treason  ?  ...............................................................  187 

CHAPTER  XIX. 

The  Causes  of  Secession  ................................................................  217 


CHAPTER  XX. 
The  Legislators  of  1787  as  Political  Prophets 


PREFACE. 


IT  is  not  the  design  of  this  book  to  open  the  subject 
of  secession.  The  subjugation  of  the  Southern  States,  and 
their  acceptance  of  the  terms  dictated  by  the  North,  may, 
if  the  reader  please,  be  considered  as  having  shifted  the 
Federal  Government  from  the  basis  of  compact  to  that 
of  conquest;  and  thereby  extinguished  every  claim  to  the 
right  of  secession  for  the  future.  Not  one  word  in  the  fol 
lowing. pages  will  at  least  be  found  to  clash  with  that  sup 
position  or  opinion.  The  sole  object  of  this  work  is  to  dis 
cuss  the  right  of  secession  with  reference  to  the  past ;  in 
order  to  vindicate  the  character  of  the  South  for  loyalty, 
and  to  wipe  off  the  charges  of  treason  and  rebellion  from 
the  names  and  memories  of  Jefferson  Davis,  Stonewall 
Jackson,  Albert  Sydney  Johnston,  Robert  E.  Lee,  and  of 
all  who  have  fought  or  suffered  in  the  great  war  of  coer- 
cion.  Admitting,  then,  that  the  right  of  secession  no  lon 
ger  exists;  the  present  work  aims  to  show,  that,  however 
those  illustrious  heroes  may  have  been  aspersed  by  the 
ignorance,  the  prejudices,  and  the  passions  of  the  hour, 
they  were,  nevertheless,  perfectly  loyal  to  truth,  justice, 


VI  PREFACE. 

and  the  Constitution  of  1787  as  it  came  from  the  hands 
of  the  fathers. 

The  radicals  themselves  may,  if  they  will  only  read  the 
following  pages,  find  sufficient  reason  to  doubt  their  own 
infallibility,  and  to  relent  in  their  bitter  persecutions  of 
the  South. 

The  calm  and  impartial  reader  will,  it  is  believed,  discov 
er  therein  the  grounds  on  which  the  South  may  be  vindi 
cated,  and  the  final  verdict  of  History  determined  in  favor 
of  a  gallant,  but  down-trodden  and  oppressed,  PEOPLE. 


IS  DAVIS  A  TRAITOR  ? 


CHAPTEE    I. 

Opinions  respecting  Secession  determined  by  passion,  not  by  reason. 

THE  final  judgment  of  History  in  relation  to  the  war  of 
1861  will,  in  no  small  degree,  depend  on  its  verdict  with 
respect  to  the  right  of  secession.  If,  when  this  right  was 
practically  asserted  by  the  South,  it  had  been  conceded  by 
the  North,  there  would  not  have  been  even  a  pretext  for 
the  tremendous  conflict  which  followed.  Is  it  not  won 
derful,  then,  that  a  question  of  such  magnitude  and  import 
ance  should  have  been  so  little  considered,  or  discussed? 
Perhaps  no  other  question  of  political  philosophy,  or  of 
international  law,  pregnant  with  such  unutterable  calami 
ties,  has  ever  been  so  partially  and  so  superficially  exam 
ined  as  the  right  of  secession  from  the  Federal  Union  of 
the  United  States.  From  first  to  last,  it  seems  to  have 
been  decided  by  passion,  and  not  by  reason.  The  voice 
of  reason,  enlightened  by  the  study  of  the  facts  of  history 
and  the  principles  of  political  philosophy,  yet  remains  to 
be  heard  on  the  subject  of  secession. 

No  one,  at  present,  denies  that  the  States  had  a  right  to 
secede  from  the  Union  formed  by  the  old  Articles  of  Con 
federation.  Indeed,  this  right  was  claimed  and  exercised 
by  the  States,  when  they  withdrew  from  that  Confedera 
tion  in  order  to  form  "a  more  perfect  Union."  Yet,  while 
that  Union  was  standing  and  in  favor  with  the  people,  the 
right  of  secession  therefrom  was  vehemently  denied.  The 


2  IS    DAVIS    A   TRAITOR? 

reason  of  this  is  well  stated  by  Mr.  Madison  in  "  The  Fed 
eralist."  Having  explained  and  vindicated  the  right  of 
the  States,  or  any  portion  of  them,  to  secede  from  the 
existing  Union,  he  adds :  "  The  time  has  been  when  it  was 
incumbent  on  all  of  us  to  veil  the  ideas  which  this  para 
graph  exhibits.  The  scene  has  now  changed,  and  with  it 
the  part  which  the  same  motives  dictate."*  That  is  to  say, 
the  time  has  been  when  it  became  all  Americans,  as  patriots 
and  worshippers  of  the  existing  Union,  to  veil  the  right  of 
secession  •  but  now  is  the  time  to  unveil  this  sacred  right, 
and  let  the  truth  be  seen  I  Accordingly,  the  Convention 
of  1787  unveiled  this  right,  and  the  States,  one  after 
another,  seceded  from  the  Union ;  though  the  Articles  by 
which  it  was  formed  expressly  declared  that  it  should  be 
"perpetual,"  or  last  forever. 

The  same  thing  happened,  in  a  still  greater  degree, 
under  the  new  and  "more  perfect  Union."  This,  unlike 
the  one  for  which  it  had  been  substituted,  did  not  pro 
nounce  itself  immortal.  Still  it  was  deemed  incumbent  on 
all  men  by  Mr.  Madison,  and  especially  upon  himself,  to 
veil  the  right  of  secession  from  the  new  Union ;  which  he, 
more  than  any  other  man,  had  labored  to  establish  and 
preserve.  But  having  exercised  the  right  of  secession  from 
one  compact  between  the  States,  how  could  he  veil  that 
right  under  another  compact  between  the  same  parties  ? 
Having,  for  the  benefit  of  his  age,  revealed  the  truth,  how 
could  he  hope  to  hide  it  from  all  future  ages  ?  Having 
laid  down  the  right  of  secession  from  one  Federal  Union, 
as  the  great  fundamental  law  to  which  the  new  Union 
owed  its  very  existence,  how  could  he  hope  to  cover  it  up 
again,  and  make  the  new  compact  forever  binding  on  pos 
terity  ?  There  is  not,  it  is  believed,  in  the  whole  range  of 
literature,  a  sophism  more  ineffably  weak  and  flimsy  than 
the  one  employed  by  Mr.  Madison  to  veil  the  right  of 
secession  from  the  new  Union. 

^Federalist  No.  xliii. 


IS    DAVIS    A   TRAITOR?  3 

The  first  compact,  says  he,  was  made  by  the  Legislatures 
of  the  States,  and  the  second  by  the  people  themselves  of 
the  States.  Hence,  although  the  States  had  seceded  from 
the  first  compact  or  Union,  he  supposed,  or  hoped,  they 
would  have  no  right  to  secede  from  the  second.*  The 
first  compact  was,  it  is  true,  originally  adopted  by  the 
Legislatures  of  the  States  ;  but  then  it  was  approved  by 
the  people  themselves,  who  lived  under  it  as  the  Constitu 
tion  and  government  of  their  choice.  Were  not  the  States, 
then,  just  as  much  bound  by  this  compact,  as  if  it  had  been 
originally  made  by  the  .people  themselves  ?  What  would 
be  thought  of  an  individual,  who  should  approve  and  adopt 
as  his  own  a  contract  made  by  his  agent,  and,  having 
derived  all  the  advantages  of  it,  should  seek  to  repudiate  it 
on  the  ground  that  it  was  not  originally  entered  into  by 
himself?  He  would  be  deemed  infamous.  Yet,  precisely 
such  is  the  distinction  and  the  logic  of  Mr.  Madison,  in  his 
attempt  to  justify  the  act  of  secession  from  the  first  Union, 
and  to  deny  the  right  of  secession  from  the  second  Union 
between  the  same  parties  !  The  two  compacts  are  con 
strued  diiferently ;  because  the  one  was  originally  made  by 
agents  and  afterwards  ratified  by  the  principals,  and  the 
other  was  originally  made  by  the  principals  themselves  ! 
Could  any  sophism  be  more  weak  or  flimsy  ?  Is  it  not, 
indeed,  in  the  eye  of  reason,  as  thin  as  gossamer,  as  trans 
parent  as  the  air  itself?  Hopeless,  indeed,  must  be  the 
attempt  to  find  a  difference  between  the  two  cases,  which 
shall  establish  the  right  of  secession  in  the  one  and  not  in 
the  other ;  since  James  Madison  himself,  with  all  his  unsur 
passed  powers  of  logic  and  acute  discrimination,  was  com 
pelled  to  rely  on  so  futile  a  distinction. 

But  the  majority  needed  no  veil,  not  even  one  as  thin  as 
that  employed  by  Mr.  Madison,  to  conceal  the  right  of 
secession  from  their  eyes.  The  mists  raised  by  its  own 
passions  were  amply  sufficient  for  that  purpose.  The  doc- 

*  The  Madison  Papers,  p.  1184. 


4  IS   DAVIS    A    TRAITOR? 

trine  of  secession  was  regarded,  by  the  reigning  majority, 
as  simply  equivalent  to  the  destruction  of  "  the  best  Gov 
ernment  the  world  had  ever  seen,"  or  was  ever  likely  to 
see.  Hence,  before  the  dread  tribunal  of  the  sovereign 
majority,  the  touch  of  secession  was  political  death.  The 
public  men  of  the  country,  and  all  aspirants  after  office, 
shrank  from  it  as  from  plague,  pestilence,  and  famine.  As 
to  whether  secession  was  a  Constitutional  right  or  other 
wise,  the  multitude  knew  nothing,  and  cared  less ;  but  still, 
in  their  passionate  zeal,  they  denounced  it  as  rebellion,  trea 
son,  and  every  other  crime  in  the  dark  catalogue  of  politi 
cal  offences.  Their  leaders,  having  studied  the  subject  as 
little  as  themselves,  were  no  less  ignorant  respecting  the 
merits  of  the  question,  and  even  more  fierce  in  denouncing 
secession  as  the  sum  of  all  villainies,  treasons,  and  rebel 
lions.  Thus,  what  the  logic  of  Mr.  Madison  failed  to  accom 
plish,  was  achieved  by  the  rhetoric  of  angry  politicians 
and  the  passions  of  an  infuriated  majority ;  that  is,  the 
right  of  secession  was  veiled.  The  object  of  this  little  book 
is  simply  to  appeal  from  the  mad  forum  of  passion  to  the 
calm  tribunal  of  reason. 

But  why,  it  may  be  asked,  appeal  to  reason?  Has  not 
the  war  of  secession  been  waged,  and  the  South  subjuga 
ted?  Can  reason,  however  victorious,  bind  up  the  broken 
heart,  or  call  the  dejid  to  life  ?  Can  reason  cause  the  des 
olate,  dark,  waste  places  of  the  South  to  smile  again,  or 
the  hearts  of  her  downcast  and  dejected  people  to  rejoice? 
Can  reason  strike  the  fetters  from  the  limbs  of  the  down 
trodden  white  population  of  the  South?  True,  alas!  rea 
son  can  do  none  of  these  things;  but  still  she  has  a  high 
office  and  duty  to  perform.  For,  however  sore  her  calam 
ities,  all  is  not  yet  lost  to  our  bleeding  and  beloved  South. 
She  s'till  retains  that  which,  to  every  true  man,  is  infinitely 
dearer  than  property  or  life.  She  still  retains  her  moral 
wealth, — the  glory  of  her  Jacksons,  her  Sidney  Johnsons, 
her  Lees,  her  Davises,  and  of  all  who  have  nobly  died  or 


IS    DAVIS    A    TRAITOR?  5 

suffered  in  her  cause.  These  are  her  imperishable  jewels; 
and,  since  little  else  is  left  to  her,  these  shall  be  cherished 
with  the  greater  love,  with  the  more  enthusiastic  and 
undying  devotion. 

Let  no  one  ask,  then,  except  a  dead  soul,  why  argue  the 
question  of  secession?  For,  it  is  precisely  as  this  question 
is  decided,  that  the  Jacksons,  the  Johnsons,  the  Lees,  and 
the  Davises  of  the  South,  will  be  pronounced  rebels  and 
traitors,  or  heroes  and  martyrs ;  that  the  South  itself  will 
be  disgraced,  or  honored,  in  the  estimation  of  mankind. 
History  is,  at  this  moment,  busy  in  making  up  her  verdict 
on  this  momentous  question;  which  is  to  determine  so 
much  that  is  most  dear  to  every  true  son  of  the  South. 
Shall  we,  then,  remain  idle  spectators,  mere  passive  look 
ers-on,  while  the  !N"orth  is  flooding  the  world  with  volumes 
against  the  justice  of  our  cause?  Shall  we  stand,  like  the 
dumb  brutes  around  us,  having  no  word  to  utter  in  the 
great  cause  of  truth,  justice  and  humanity,  which  is  now 
pending  at  the  bar  of  History  ?  Or  shall  we,  on  the  con 
trary,  contribute  our  mite  toward  the  just  decision  of  that 
glorious  cause  ?  The  radicals  themselves  might,  perhaps, 
derive  some  little  benefit  from  our  humble  labors.  For,  if 
duly  weighed  and  considered  by  them,  these  labors  might 
serve  to  mitigate  their  wrath,  and  turn  their  thoughts 
from  schemes  of  vengeance  to  the  administration  of  jus 
tice,  from  persecution  and  ruin  to  peace  and  prosperity. 
Be  this  as  it  may,  however,  I  shall  proceed  to  argue  the 
right  of  secession;  because  this  is  the  great  issue  on 
which  the  whole  Southern  people,  the  dead  as  well  as  the 
living,  is  about  to  be  tried  in  the  person  of  their  illustrious 
chief,  Jefferson  Davis. 


CHAPTEE    II. 

The  Issue;  or  Point  in  Controversy. 

IT  is  conceded,  both  by  Webster  and  Story,  that  if  the 
Constitution  is  a  compact  to  which  the  States  are  the  par 
ties,  then  the  States  have  a  right  to  secede  from  the  Union 
at  pleasure.  Thus,  says  Webster,  in  stating  the  conse 
quences  of  Mr.  Calhoun's  doctrine  —  "if  a  league  between 
sovereign  powers  have  no  limitation  as  to  the  time  of 
duration,  and  contain  nothing  making  it  perpetual,  it 
subsists  only  during  the  good  pleasure  of  the  parties, 
although  no  violation  be  complained  of.  If,  in  the  opin 
ion  of  either  party,  it  be  violated,  such  party  may  say  he 
will  no  longer  fulfil  its  obligations  on  his-  part,  but  will 
consider  the  whole  league  or  compact  at  an  end,  although 
it  might  be  one  of  its  stipulations  that  it  should  be  perpet 
ual."  In  like  manner  Mr.  Justice  Story  says  —  "The 
obvious  deductions  which  may  be,  and,  indeed,  have  been, 
drawn  from  considering  the  Constitution  a  compact 
between  States,  are  that  it  operates  as  a  mere  treaty  or 
convention  between  them,  and  has  an  obligatory  force  no 
longer  than  suits  its  pleasure  or  its  consent  continues,"*  &c, 
Thus  the  great  controversy  is  narrowed  down  to  the  sin 
gle  question---Is  the  Constitution  a  compact  between  the 
States?  If  so,  then  the  right  of  secession  is  conceded, 
even  by  its  most  powerful  and  determined  opponents ;  by 

*  "Commentaries  on  the  Constitution,"  vol.  iii,  p.  287,  first  pub 
lished  in  1833. 


IS   DAVIS    A    TRAITOR?'  7 

the  great  jurist,  as  well  as  by  "the  great  expounder"  of 
the  North. 

The  denial  that  the  Constitution  was  a  compact,  is  pre 
sented  in  every  possible  form,  or  variety  of  expression. 
We  are  told,  that  it  was  not  made  by  the  States,  nor  by 
the  people  of  the  States,  but  "by  the  people  of  the  whole 
United  States  in  the  aggregate."*  The  States,  we  are 
assured,  did  not  accede  to  the  Constitution  j  it  was  ordained 
by  the  sovereign  people  of  America  as  one  nation.  Echo 
ing  the  bold  assertion  of  Webster,  Mr.  Motley  says,  that 
"  The  States  never  acceded  to  the  Constitution,  and  have 
no  power  to  secede  from  it.  It  was  l  ordained  and  estab 
lished  '  over  the  States  by  a  power  superior  to  the  States, 
by  the  people  of  the  whole  land  in  their  aggregate  capa- 
cityf."  It  was  not  made  by  the  States,  and  it  was  not 
ratified  by  the  States.  It  was,  on  the  contrary,  made 
and  ordained  by  the  people  of  America  as  one  nation, 
and  fs,  therefore,  the  constitution  of  a  national  govern 
ment.  Such  is  the  doctrine  which,  in  every  mode  of 
expression,  is  inculcated  by  the  Storys,  the  Websters,  and 
the  Motleys  of  the  North. 

When  we  consider,  in  the  simple  light  of  history,  the 
manner  in  which  the  Constitution  of  the  United  States 
was  made,  or  framed,  and  afterwards  ratified,  such  asser 
tions  seem  exceedingly  wonderful,  not  to  say  inexplicable 
on  the  supposition  that  their  authors  were  honest  men. 
But  who  can  measure  the  mysterious  depths  of  party 
spirit,  or  the  force  of  political  passions  in  a  democracy? 
I  know  something  of  that  force;  for,  during  the  greater 
part  of  my  life,  I  followed,  with  implicit  confidence,  those 
blind  leaders  of  the  blind,  Mr.  Justice  Story  and  Daniel 
Webster.  History  will  yet  open  the  eyes  of  the  world  to 
the  strange  audacity  of  their  assertions. 

Ever  since  the  Declaration  of  Independence,  there  have 
been  two  great  political  parties  in  the  United  States ;  the 
*  Webbter.  f  Rebellion  Record,  vol.  1,  p.  211. 


8  IS    DAVIS   A    TRAITOR? 

one,  regarding  the  American  people  as  one  nation,  has 
labored  to  consolidate  the  Federal  Union,  while  the  other, 
attaching  itself  to  the  reserved  rights  of  the  States,  has 
zealously  resisted  this  tendency  to  consolidation  in  the 
central  power.  Even  under  the  old  Articles  of  Confeder 
ation,  or  before  the  new  Constitution  was  formed,  these 
political  opinions  and  parties  existed.  For,  however 
strange  it  may  seem,  there  were  those  who,  even  under 
those  Articles,  considered  "the  States  as  Districts  of  peo 
ple  composing  one  political  society;"*  or  the  "American 
people  as  forming  one  nation. "f  Nay,  in  the  great  Con 
vention  of  1787,  by  which  the  Constitution  was  formed,  it 
was  boldly  asserted  by  a  leading  member,  "that  we  never 
were  independent  States,  were  not  such  now,  and  never 
could  be,  even  on  the  principles  of  the  Confederation. 
The  States,  and  the  advocates  of  them,  were  intoxicated 
with  the  idea  of  their  sovereignty."  J  Kow,  if  any  aberra 
tion  of  the  mind  under  the  influence  of  political  passions 
could  seem  strange  to  the  student  of  history,  it  would  be 
truly  wonderful,  that  such  an  assertion  could  have  been 
put  forth  under  the  Articles  of  Confederation  which 
expressly  declared  that  "each  State"  of  the  Union  formed 
by  them  "retains  its  sovereignty,  freedom,  and  indepen 
dence.'^  The  author  of  that  assertion  did  not  interpret, 
he  flatly  contradicted,  the  fundamental  law  of  the  govern 
ment  under  which  he  lived  and  acted. 

The  above  opinion  or  view  of  the  old  Articles  of  Con 
federation  passed  away  with  the  passions  to  what  it  owed 
its  birth,  UXo  one,  at  the  present  day,  supposes  that  the 
old  Articles  moulded  the  States  into  "  one  political  soci 
ety,"  or  "  nation,"  leaving  them  merely  "  districts  of  peo 
ple."  For  since  those  Articles  have  passed  away,  and  the 
struggle  for  power  under  them  has  ceased,  all  can  clearly 

*The  Madison  Papers,  p.  987. 

f  Marshall's  Life  of  Washington,  vol.  v,  chap.  1. 

j  The  Madison  Papers.  2  Article  2. 


IS    DAVIS    A    TRAITOR?  9 

sec  what  they  so  plainly  announced  that  "each  Slate"  of 
the  confederation  established  by  them  retained  "its  sover 
eignty,  freedom,  and  independence." 

But  the  natures  of  men  were  not  changed  by  changing 
the  objects  to  which  their  political  passions  might  attach 
themselves.  Hence  the  same  opposite  tendencies  arose 
under  the  new  "Articles  of  Union,"  as  the  Constitution  of 
1787  is  habitually  called  by  its  authors,  and  produced  the 
same  conflicting  parties.  Each  party  had,  of  course,  its 
extreme  wing.  There  were  those  who,  unduly  depressing 
the  States,  identified  their  relations  to  the  central  power 
with  that  of  so  many  counties  to  a  state,  or  of  individuals 
to  an  ordinary  political  community.  On  the  other  hand, 
there  were  those  who,  from  an  extreme  jealousy  of  the 
central  authority,  resolved  the  States  into  their  original 
independence,  or  into  their  condition  under  the  Articles 
of  Confederation.  The  watch-word  of  one  party  was  the 
sovereignty  of  the  Federal  Union;  and  the  watch- word  of 
the  other,  was  the  sovereignty  of  the  States. 

It  was  in  the  Senate  of  the  United  States,  in  1833,  that 
these  two  theories  of  the  Constitution  stood  face  to  face  in 
the  persons  of  those  two  intellectual  giants — Webster  and 
Calhoun — then  engaged  in  the  most  memorable  debate  of 
the  New  World.  It  was  then  predicted,  and  events  have 
since  verified  the  prediction,  that  the  destinies  of  America 
would  hinge  and  turn  on  the  principles  of  that  great 
debate.  The  war  of  words  then  w^aged  between  the 
giants  has  since  become  a  war  of  deeds  and  blood  between 
the  sections  which  they  represented.  Now  the  question 
is,  on  which  side  was  right,  truth,  justice? 

This  is  precisely  the  question  which,  in  1833,  the  great 
combatants  submitted  to  the  decision  of  after  ages.  As 
he  drew  toward  the  close  of  his  speech,  Mr.  Calhoun 
reminded  his  great  antagonist  "that  the  principles  ho 
might  advance  would  be  subjected  to  the  revision  of  poster 
ity."  "  I  do  not  decline  its  judgment,"  said  Mr.  Webster,  in 
*2 


10  IS   DAVIS   A   TRAITOR? 

rising  to  reply,  "nor  withhold  myself  from  its  scrutiny." 
Mr. Webster's  speech  on  this  occasion  is  pronounced  "by  his 
learned  biographer*  the  greatest  intellectual  effort  of  his 
life,  and  is  represented  as  having  annihilated  every  posi 
tion  assumed  by  Mr.  Calhoun.  But  the  combatants  did 
not  submit  the  controversy  to  the  judgment  ef  Mr.  Ever 
ett;  they  submitted  it- to  "the  revision  of  posterity."  His 
tory  is  the  great  tribunal  to  which  they  appealed;  and  his 
tory  will  settle  the  great  issue  between  them,  and  between 
the  two  hostile  sections  of  the  Union. 

It  was  in  1833,  for  the  first  time  in  the  history  of  the 
country,  that  it  was  solemnly  asserted  and  argued,  that 
the  Constitution  of  the  United  States  was  not  a  compact 
between  the  States.  This  new  doctrine  was  simultane 
ously  put  forth,  by  Mr.  Justice  Story  in  his  "  Commenta 
ries  on  the  Constitution  of  the  United  States,"  and  by  Mr. 
Daniel  Webster  in  "the  greatest  intellectual  effort  of  his 
life,"  that  is,  in  his  great  speech  in  the  Senate  of  the  16th 
of  February,  1833.  In  order  to  show  that  the  Constitu 
tion  is  not  a  compact  between  the  States,  the  position  is 
assumed,  that  it  is  not  a  compact  at  all.  If  it  be  a  com 
pact,  say  they,  then  the  States  had  a  right  to  secede. 
But  it  is  not  a  compact;  and  hence  secession  is  treason 
and  rebellion.  The  great  fundamental  questions,  then,  on 
which  the  whole  controversy  hinges,  are,  first,  Is  the 
Constitution  a  compact?  and,  secondly,  Is  it  a  compact 
between  the  States  ?  These  are  the  questions  which  shall 
and  ought  to  be  subjected  to  "the  revision  of  posterity." 

*  Edward  Everett. 


CHAPTEE    III. 

"  The  great  expounder  "  scouts  the  idea,  that  the  States  '•'•acceded'1'1  to  the  Constitution. 

MR.  WEBSTER  was  supposed  to  have  studied  the  Consti 
tution,  and  its  history,  more  carefully  and  more  profoundly 
than  any  other  man.  He  habitually  spoke,  indeed,  as  if  he 
had  every  particle  of  its  meaning,  and  of  its  history,  at 
his  finger's  etid.  Hence  he  acquired,  at  least  among  his 
political  friends,  the  lofty  title  of  "  The  great  expounder." 
His  utterances  were  listened  to  as  oracles.  If,  indeed,  his 
great  mind  had  been  guided  by  a  knowledge  of  facts,  or  a 
supreme  love  of  truth ;  the  irresistible  force  of  his  logic,  and 
the  commanding  powers  of  his  eloquence,  would  have  jus 
tified  those  who  delighted  to  call  him  "  the  god-like  Dan 
iel."  But,  unfortunately,  no  part  of  his  god-likeness  con 
sisted  in  a  scrupulous  regard  for  truth,  or  the  accuracy  of 
his  assertions.  He  was,  however,  so  great  a  master  of 
words,  that  he  stood  in  little  need  of  facts,  in  order  to  pro 
duce  a  grand  impression  by  the  rolling  thunders  of  his  elo 
quence.  I  only  wonder,  that  he  was  not  also  called,  "  The 
thunderer."  ISTo  one  better  understood,  either  in  theory 
or  in  practice,  the  wonderful  magic  of  words  than  Daniel 
Webster. 

"  Was  it  Mirabeau,"  says  he,  "  or  some  other  master  of 
the  human  passions,  who  has  told  us  that  words  are 
things?  They  are  indeed  things,  and  things  of  mighty 
influence,  not  only  in  addresses  to  the  passions  and  high- 
wrought  feelings  of  mankind,  but  in  the  discussion  of  legal 
and  political  questions  also  j  because  a  just  conclusion  is 


12  IS    DAVIS    A   TRAITOR? 

often  avoided,  or  a  false  one  reached,  by  the  adroit  substi 
tution  of  one  plfrase,  or  one  word,  for  another."  Nothing 
can  be  more  just  than  this  general  reflection  ;  and  nothing, 
as  we  shall  presently  see,  can  be  more  unjust  than  the 
application  made  of  it  by  Mr.  Webster. 

He  finds  an  example  of  this  adroit  use  of  language  in  the 
first  resolution  of  Mr.  Calhoun.  "The  first  resolution," 
says  he,  "declares  that  the  people  of  the  several  States 
'acceded'  to  the  Constitution."  As  "the  natural  converse 
of  accession  is  secession"  so  Mr.  Webster  supposes  that  Cal 
houn  has  adroitly,  and  "not  without  a  well-considered 
purpose,"  shaped  his  premises  to  a  foregone  conclusion. 
"When  it  is  stated,"  says  he,  "that  the  people  of  thevState 
acceded  to  the  Union,  it  may  be  more  plausibly  argued  that 
they  may  secede  from  it.  If,  in  adopting  the  Constitution, 
nothing  was  done  but  acceding  to  a  compact,  nothing  would 
seem  necessary,  in  order  to  break  it  up,  but  to  secede  from 
the  same  compact." 

But  " this  term  accede"  asserts  Mr.  Webster,  " is  wholly 

out  of  place There  is  more  importance  than  may, 

at  first  sight,  appear  in  the  introduction  of  this  new  word 

by  the  honorable  mover  of  the  resolutions." "  The 

people  of  the  United  States,"  he  continues,  "  used  no  such 
form  of  expression  in  establishing  the  present  Govern 
ment." It  is  "  unconstitutional  language."  Such 

are  a  few  of  the  bold,  sweeping,  and  confident  assertions  of 
"  the  great  expounder  of  the  Constitution."  But  how 
stands  the  fact ?  Is  this  really  "a  new  word;"  or  is  it  as 
old  as  the  Constitution  itself,  and  rendered  almost  obsolete 
at  the  North  by  the  progress  of  new  ideas  and  new  forms 
of  speech  ?  Was  it  not,  in  fact,  as  familiar  to  the  very 
fathers  and  framers  of  the  Constitution  of  the  United 
States  as  it  afterwards  become  foreign  and  strange  to  the 
ears  of  its  Northern  expounders?*  This  is  the  question; 
and,  fortunately,  the  answer  is  free  from  all  metaphysical 
refinement,  from  all  logical  subtlety,  from  all  curious  spec- 


IS    DAVIS    A    TRAITOR?  13 

illation.  For  there  lies  the  open  record,  with  this  very 
word  accede,  and  this  very  application  of  the  word,  spread 
•all  over  its  ample  pages  in  the  most  abundant  profusion. 
No  mode  of  expression  is,  indeed,  more  common  with  the 
fathers  and  the  framers  of  the  Constitution,  while  speak 
ing  of  the  act  of  its  adoption,  than  this  very  phrase,  "  the 
accession  of  the  States."  No  household  word  ever  fell  more 
frequently  or  more  familiarly  from  their  lips. 

Thus  in  the  Convention  of  1787,  Mr.  James  Wilson,  to 
whose  great  influence  the  historian  of  the  Constitution 
ascribes  its  adoption  by  the  State  of  Pennsylvania,*  pre 
ferred  "  a  partial  union  "  of  the  States,  "  with  a  door  open 
for  the  accession  of  the  rest,"  rather  than  to  sec  their  dis 
position  "to  confederate  anew  on  better  principles" 
entirely  defeated.f  "But  will  the  small  States,"  asks 
another  member  of  the  same  Convention,  "  in  that  case, 
accede  to  it"  (the  Constitution?)  Mr.  Gerry,  a  delegate 
from  Massachusetts,  was  opposed  to  "a  partial  confed 
eracy,  leaving  other  States  to  accede  or  not  to  accede,  as 
had  been  intimated. "J  Even  Mr.  Madison,  "  the  father  of 
the  Constitution,"  as  by  way  of  eminence  he  has  long  been 
called,  used  the  expression  "  to  accede  "  in  the  Convention 
of  1787,  in  order  to  denote  the  act  of  adopting  "the  new 
form  of  government  by  the  States. "§ 

In  like  manner  Governor  Randolph,  who  was  also  a 
member  of  the  Convention  of  1787,  and  who  had  just 
reported  the  form  of  ratification  to  be  used  by  the  State 
of  Virginia,  said,  "That  the  accession  of  eight  States 
reduced  our  deliberations  to  the  single  question  of  Union 
or  no  Union."  "  If  it  (the  Constitution,")  says  Patrick 
Henry,  "be  amended,  every  State  will  accede  to  it."|| 
"  Does  she  (Virginia)  gain  anything  from  her  central  posi 
tion,"  asks  Mr.  Grayson,  "  by  acceding  to  that  paper,"  the 

*  Mr.  Curtis,  vol.  i.}  p.  465.     f  "  The  Madison  Papers,"  p.  797. 
JIbid,p.  1101.  §Ibid,p.  1103.  ||  "Elliot's  Debates,"  vol.  iii.,  p.  652. 


14  IS   DAVIS   A   TRAITOR? 

Constitution  ?*  "  I  came  hither,"  says  Mr.  Innes,  "  under 
the  persuasion  that  the  felicity  of  our  country  required 
that  we  should  accede  to  this  system,"  f  (the  new  Constitu-' 
tion.)  "Our  new  Constitution,"  says  Franklin,  who  next 
to  Washington  was  the  most  illustrious  member  of  the 
Convention  of  1787,  "is  now  established  with  eleven 
States,  and  the  accession  of  a  twelfth  is  soon  expected. "J 
And,  finally,  George  Washington  himself,  who,  watching 
the  States  as  one  after  another  adopted  the  new  Constitu 
tion,  says  : — "If  these,  with  the  States  eastward  and  north 
ward  of  us,  should  accede  to  the  Federal  Government,'' 
&c.§  Thus,  while  the  transaction  was  passing  before  their 
eyes  the  fathers  of  the  Constitution  of  the  United  States, 
with  the  great  father  of  his  country  at  their  head, 
described  the  act  by  which  the  new  Union  was  formed  as 
'"the  accession  of  the  States;"  using  the  very  expression 
which,  in  the  resolution  of  Mr.  Calhoun,  is  so  vehemently 
condemned  as  "unconstitutional  language,"  as  "a  new 
word,"  invented  by  the  advocates  of  secession  for  the  vile 
purpose  of  disunion. 

To  these  high  authorities,  may  be  added  that  of  Chief 
Justice  Marshall ;  who,  in  his  Life  of  Washington,  notes 
the  fact,  that  "North  Carolina  accedes  to  the  Union. "|| 
This  was  many  months  after  the  new  Government  had 
gone  into  operation.  Mr.  Justice  Story,  is,  in  spite  of  his 
artificial  theory  of  Constitution,  a  witness  to  the  same  fact. 
"The  Constitution,"  says  he,  "has  been  ratified  by  all 

the  States ;" "  Rhode  Island  did  not  accede  to  it,  until 

more  than  a  year  after  it  had  been  in  operation;"  just  as 
if  he  had  completely  forgotten  his  own  theory  of  the  Con 
stitution.^]" 

*  "  The  Madison  Papers,"  p.  1099. 

f  "Elliot's  Debates,"  vol.  Hi. 

J  <l  Franklin's  Works,"  vol.  v..  p.  409. 

I   u  The  Writings  of  Washington,"  vol.  ix.,  p.  280. 

||  Vol.  v,  chap.  iii. 

If  Book  iii,  chap,  xliii. 


IS   DAVIS   A   TRAITOR?  15 

If  it  were  necessary,  this  list  of  authorities  for  the  use 
of  the  word  in  question,  and  for  the  precise  application 
made  of  it  by  Mr.  Calhoun,  might  be  greatly  extended. 
But  surely  we  have  seen  enough  to  show  how  very  ill- 
informed  was  "the  great  expounder"  with  respect  to  the 
language  of  the  fathers.  Not  only  John  C.  Calhoun,  but 
Washington,  Franklin,  Wilson,  King,  Morris,  Randolph, 
Madison,  and  all  the  celebrated  names  of  the  great  Con 
vention  of  1787,  came  under  the  denunciation  of  this  mod 
ern  "  expounder  of  the  Constitution." 

There  is,  as  Mr.  Webster  says,  more  importance  to  be 
attached  to  the  word  in  question  than  may  at  first  sight 
appear.  For  if  "the  States  acceded"  to  the  Constitution, 
each  acting  for  itself  alone,  then  was  it  a  voluntary  asso 
ciation  of  States,  from  w^hich,  according  to  his  own  admis 
sion,  any  member  might  secede  at  pleasure.  Accordingly 
this  position  of  the  great  oracle  of  the  North  is  echoed  and 
re-echoed  by  all  who,  since  the  war  began,  have  written 
against  the  right  of  secession.  Thus,  says  one  of  the  most 
faithful  of  these  echoes,  Mr.  Motley — "  The  States  never 
acceded  to  the  Constitution,  and  have  no  power  to  secede 
from  it."  It  was  "  ordained  and  established "  over  the 
States  by  a  power  superior  to  the  States,  by  the  people  of 
the  whole  land  in  their  aggregate  capacity.*  If,  with  the 
fathers  of  the  Constitution,  in  opposition  to  its  modern 
expounder  and  perverter,  he  had  seen  that  the  new  Union 
was  formed  by  an  accession  of  the  States,  then  he  would 
have  been  compelled,  on  his  own  principle,  to  recognise  the 
right  of  secession.  For  he  has  truly  said,  what  no  one 
ever  denied,  that  "  the  same  power  which  established  the 
Constitution  may  justly  destroy  it.""j"  Hence,  if  the  Cgn- 
stitution  was  established  by  the  accession  or  consent  of  the 
States,  then  may  the  Union  be  dissolved  by  a  secession  of 
the  States.  This  conclusion  is,  as  we  have  seen,  expressly 
admitted  by  Mr.  Webster  and  Mr.  Justice  Story. 

*  Rebellion  Record,  vol.  1,  p.  211.  f  Ibid.  p.  214. 


16  IS    DAVIS    A    TRAITOR? 

Mr.  "Webster  has  well  said  that  a  true  conclusion  may  be 
avoided,  or  a  false  one  reached,  by  the  substitution  of  one 
word  or  one  phrase  for  another.  This  offence,  however,  has 
been  committed,  not  by  Mr.  Calhoun,  but  by  "the  great 
expounder  "  himself.  The  one  has  not  reached  a  false,  but 
the  other  has  shunned  a  true  conclusion  by  "  the  adroit 
use  of  language."  Instead  of  saying  and  believing  with 
the  authors  of  the  Constitution,  that  the  new  Union  was 
formed  by  "  an  accession  of  the  States,"  he  repudiates  both 
the  language  and  the  idea,  preferring  the  monstrous  heresy 
that  it  was  ordained  and  established  by  "  the  whole  people 
of  the  United  States  in  their  aggregate  capacity  "*  or  as 
one  nation — a  heresy  which  may,  with  the  records  of  the 
country,  be  dashed  into  ten  thousand  atoms. 

I  agree  with  Mr.  Webster,,  that  "  words  are  things,  and 
things  of  mighty  influence."  It  is,  no  doubt,  chiefly  owing 
to  the  influence  of  language,  in  connection  with  the  pas 
sions  of  men  in  a  numerical  majority,  that  the  words  and 
views  of  the  fathers  became  so  offensive  to  the  Northern 
expounders  of  the  Constitution.  "Words,"  says  the  phil 
osopher  of  Malmesbury,  "  are  the  counters  of  wise  men,  but 
the  money  of  fools."  To  which  I  may  add,  if  this  last 
phrase  be  true,  as  most  unquestionably  it  is,  then  is  there 
scarcely  a  man  on  earth  without  some  touch  of  folly;  for 
all  are,  more  or  less,  under  the  influence  of  words.  A  far 
greater  than  either  Mirabeau  or  Hobbes  has  said  that  we 
are  often  led  captive  by  the  influence  of  words,  even  when 
we  think  ourselves  the  most  complete  masters  of  them. 
Mr.  Webster  was  himself,  as  we  shall  frequently  have  occa 
sion  to  see,  a  conspicuous  instance  and  illustration  of  the 
truth  of  the  profound  aphorism  of  Bacon.  Of  all  the  dupes 
of%is  own  eloquence,  of  all  the  spell-bound  captives  of  his 
own  enchantments,  he  was  himself,  perhaps,  at  times,  the 
most  deluded  and  the  most  unsuspecting  victim. 

When,  from  his  high  position  in  the  Senate,  Mr.  Webster 

*Mr.  Webster's  Speech  of  1830. 


IS    DAVIS    A    TRAITOR?  17 

assured  the  people  of  the  United  States,  that  it  is  "uncon 
stitutional  language"  to  say  "the  States  acceded  to  the 
Constitution;"  he  was  no  doubt  religiously  believed  by  the 
great  majority  of  his  readers  and  hearers.  He  was  sup 
posed  to  know  all  about  the  subject ;  and  was,  therefore, 
followed  as  the  great  guide  of  the  people.  But,  as  we 
have  seen,  he  was  profoundly  ignorant  of  the  facts  of  the 
case,  about  which  he  delivered  himself  with  so  much  con 
fidence.  The  "new  word,"  as  he  called  it,  was  precisely 
the  word  of  the  fathers  of  the  Constitution.  Hence,  if  this 
word  lays  the  foundation  of  secession,  as  Mr.  "Webster 
contended  it  does,  that  foundation  was  laid,  not  by  Cal- 
houn,  but  by  the  fathers  of  the  Constitution  itself,  with 
"  the  father  of  his  country  "  at  their  head. 

So  much  for  the  first  link  in  "  the  great  expounder's  " 
argument  against  the  right  of  secession.  His  principles 
are  right,  but  his  facts  are  wrong.  It  is,  indeed,  his  habit 
to  make  his  own  facts,  and  leave  those  of  history  to  take 
care  of  themselves.  He  just  puts  forth  assertions  without 
knowing,  and  apparently  without  caring,  whether  they 
are  true  or  otherwise.  We  shall  frequently  have  occasion 
to  notice  this  utter,  this  reckless  unveracity  in  "  the  great 
ex«pounder." 


CHAPTER    IV. 

The  first  Resolution  passed  by  the  Convention  of  1787. 

MR.  WEBSTER  lays  great  stress  on  the  fact,  that  the  first 
resolution  passed  by  the  Convention  of  1787  declared,  "That 
a  national  government  onght  to  be  established,  consisting 
of  a  supreme  legislative,  judiciary,  and  executive."  But 
the  fact  only  shows  that  the  Convention,  when  it  first  met, 
had  the  desire  to  establish  "  a  national  government,"  rather 
than  a  federal  one.  This  resolution  was  passed  before  the 
Convention  was  fully  assembled,  and  by  the  vote  of  only 
six  States,  a  minority  of  the  whole  number.  After  the 
members  had  arrived,  and  the  Convention  was  full,  the 
resolution  in  question  was  reconsidered  and  rescinded. 
The  Convention,  when  filled  up,  changed  the  name  of  their 
offspring,  calling  it  "the  government  of  the  United  States."* 
A  fraction  of  the  Convention  named  it,  as  Mr.  Webster 
says  ;  but  the  whole  Convention  refused  to  baptise  it  with 
that  name,  and  gave  it  another.  Why  then  resuscitate 
that  discarded  name,  and  place  it  before  the  reader,  as  Mr. 
Webster  does,  in  capital  letters  ?  Is  it  because  "  words  are 
things;  and  things  of  mighty  influence"  ?  or  why  persist,  as 
Mr.  Webster  always  does,  in  calling  "the  government  of  the 
United  States  "  a  national  one  ?  If  the  Convention  had 
called  it  a  national  government,  this  name  would  have 
been  so  continually  rung  in  our  ears  that  we  could  neither 
have  listened  to  the  Constitution  itself,  or  to  its  history, 
whenever  these  proclaimed  its  federal  character.  Nay, 

*T he  Madison  Papers,  p.  908. 


IS    DAVIS    A    TRAITOR?  19 

although,  the  Convention  positively  refused  to  name  it  a 
national  government,  on  the  avowed  ground  that  it  did 
not  express  their  views,  yet  has  this  name  been  eternally 
rung  in  our  ears  by  the  Northern  School  of  politicians, 
and  declaimers;  just  as  if  it  had  been  adopted,  instead  of 
having  been  repudiated  and  rejected,  as  it  was,  by  the 
authors  of  the  Constitution. 

In  like  manner  Mr.  Justice  Story,  in  his  "  Commentaries 
on  the  Constitution,"  builds  an  argument  on  the  name 
given  to  the  new  government  "  in  the  first  resolution 
adopted  by  the  convention,"  without  the  slightest  allusion 
to  the  fact  that  this  resolution  was  afterwards  reconsid 
ered,  and  the  name  changed  to  that  of  "  the  government  of 
the  United  States."  Is  .this  to  reason,  or  merely  to  deceive  ? 
Is  this  to  build  on  facts,  or  merely  on  exploded  names  ?  Is 
this  to  follow  the  Convention  in  its  deliberation,  or  is  it  to 
falsify  its  decision  ?  » 

The  Convention,  by  a  vote  of  six  States,  decided  that  "  a 
national  government  ought  to  be  established."  But  when 
this  resolution  was  reconsidered,  Mr.  Ellsworth  "  objected 
to  the  term  national  government"*  and  it  was  rejected.  Th 
record  says  :  "  The  first  resolution  '  that  a  national  gov 
ernment  ought  to  be  established,'  being  taken  up." .... 
<•  Mr.  Ellsworth,  seconded  by  Mr.  Gorham,  moves  to  alter 
it,  so  as  to  run  that  the  government  of  the  United  States 
ought  to  consist,  &c. . .  This  alteration,  he  said,  would 
drop  the  word  national,  and  retain  the  proper  title  "the 
United  States. "f  This  motion  was  unanimously  adopted 
by  the  Convention.^  That  is,  they  unanimously  rejected 
"the  term  national  government,"  and  yet  both  Story  and 
Webster  build  an  argument  on  this  term  just  as  it  had 
been  retained  by  them  ! 

The  Madison  Papers  were  not  published,  it  is  true,  when 
the  first  edition  of  Story's  Commentaries  made  their 

*  The  Madison  Papers.        f  Ibid,  p.  908.         J  Ibid,  p.  909. 


20  IS    DAVIS    A   TRAITOR? 

appearance ;  but  they  were  published  long  before  subse 
quent  editions  of  that  work.  Why,  then,  was  not  this  gross 
error  corrected  ?  Why  has  it  been  repeated  in  every  edi 
tion  of  the  Commentaries  in  question?  Indeed,  if  Mr. 
Justice  Story  had  desired  to  ascertain  the  truth  in  regard 
to  the  first  resolution  of  the  Convention,  he  might  very 
easily  have  learned  it  from  "Yates'  Minutes,"  which  were 
published  before  the  first  edition  of  his  Commentaries. 
For,  in  those  Minutes,  we  find  the  passage  :  "  Ellsworth. 
I  propose,  and  therefore  move,  to  expunge  the  word 
" national,"  in  the  first  resolve,  and  to  place  in  the  room  of 
it,  government  of  the  United  States,  which  was  agreed  to 
nem  con"*  Yet,  directly  in  the  face  of  this,  Mr.  Justice 
Story  builds  an  argument  on  the  word  national  used  in  the 
first  resolution  passed  by  the  Convention !  and,  in  order  to 
give  the  greater  eifect  to  the  same  argument,  Mr.  Webster 
prints  that  rescinded  resolution  in'capital  letters ! 

"The  name  'United  States  of  America',''  says  the 
younger  Story,  "  is  an  unfortunate  one,  and  has,  doubtless, 
led  many  minds  into  error.  For  it  may  be  said,  if  the 
States  do  not  form  a  confederacy,  why  are  they  called 
"  United  States'  "?f  This  name  is,  indeed,  a  most  unfortu 
nate  one  for  the  purpose  of  his  argument,  and  for  that  of 
the  whole  school  of  politicians  to  which  he  belongs.  But 
then,  as  we  learn  from  the  journal  of  the  convention  of 
1787,  it  was  deliberately  chosen  by  them  as  the  most  suit 
able  name  for  the  work  of  their  own  hands ;  and  that  too 
in  preference  to  the  very  name  which  the  whole  Northern 
school  clings  to  with  such  astonishing  pertinacity.  From 
the  same  journal,  as  well  as  from  the  other  records  of  the 
country,  I  shall  hereafter  produce  many  other  things 
which  are  equally  unfortunate  for  the  grand  argument  of 
the  Storys,  the  Websters,  and  the  Motleys,  of  the  North. 

*  The  Madison  Papers,  p.  908  f  Ibid.  p.  909. 

||  The  American  Question,   by  William  H.  Story. 
Elliot's  Debates.  Vol.  1  p.,  42fl. 


CHAPTEE    Y. 

The  Constitution  of  1787  a  Compact. 

WAS  the  constitution  a  compact  ?  Was  it  a  compact 
between  the  States,  or  to  which  the  States  were  the  par 
ties  ?  Was  it  a  compact  from  which  any  State  might 
recede  at  pleasure  ?  These  three  questions  are  perfectly 
distinct,  and  all  the  rules  of  clear  thinking  require  that 
they  should  be  so  held  in  our  minds,  instead  of  being 
mixed  up  and  confounded  in  our  discussions.  Yet  Mr. 
Justice  Story,  in  his  long  chapter  on  the  "Nature  of  the 
Constitution,"  discusses  these  questions,  not  separately 
and  distinctly,  but  all  in  one  confused  mass,  to  the  no  little 
perplexity  and  distraction  of  his  own  mind.  He  carries 
them  all  along  together,  and  in  the  darkness  and  confusion 
occasioned  by  this  mode  of  proceeding,  he  is  frequently 
enabled  to  elude  the  force  of  his  adversaries'  logic. 

Thus,  for  instance,  he  sets  out  with  the  flat  denial  of  the 
doctrine  that  the  Constitution  is  a  compact ;  and  yet,  when 
the  evidences  become  too  strong  for  resistance,  or  a  cloud 
of  witnesses  rise  up  to  confound  him,  he  turns  around, 
and  instead  of  fairly  admitting  that  the  Constitution  is  a 
compact,  asserts  that  if  it  is  a  compact  it  is  not  one  between 
the  States.  When  too  hardly  pressed  on  this  position, 
replies,  well,  if  it  is  a  compact  between  the  States  it  is 
not  such  a  compact  that  it  may  be  revoked  at  the  pleas 
ure  of  the  parties.  Thus,  when  he  is  driven  from  one 
position  he  falls  back  upon  another,  and  finally  rallies  to 
a  second,  a  third,  and  a  fourth  denial  of  the  main  proposi- 


22  IS    DAVIS    A    TRAITOR? 

tion  that  the  Constitution  is  a  compact.  Now,  I  intend  to 
discuss  each  one  of  these  questions  aistinctly  and  by  itself; 
holding  Mr.  Justice  Story  to  one  and  the  same  precise 
point,  until  it  is  either  made  good  or  else  demolished.  I 
hope,  in  this  way,  to  dispel  the  mists  and  fogs  he  has 
thrown  around  the  subject,  and  to  bring  out  the  truth  into 
a  clear  and  unmistakable  light. 

The  same  confusion  of  thought,  and  arising  from  the 
same  source,  pervades  Mr.  Webster's  celebrated  speech  of 
Feb.  16,  1833 ;  though  it  must  be  admitted,  not  to  the  same 
extent  that  it  prevails  in  the  "  Commentaries "  of  Mr. 
Justice  Story.  Mr.  Calhoun  very  justly  complains  of  this 
want  of  clearness  and  precision  in  the  positions  of  his  great 
antagonist.  "After  a  careful  examination,"  says  he,  "of 
the  notes  which  I  took  of  what  the  Senator  said,  I  am 
now  at  a  loss  to  know  whether,  in  the  opinion  of  the  Sen 
ator,  our  Constitution  is  a  compact  or  not,  though  the 
almost  entire  argument  of  the  Senator  was  directed  to 
that  point.  At  one  time  he  would  seem  to  deny  directly 
and  positively  that  it  was  a  compact,  while  at  another  he 
would  appear,  in  language  not  less  strong,  to  admit  that  it 
was."* 

Mr.  Webster  emphatically  and  repeatedly  denies  both 
that  a  Constitution  is  a  compact  and  also  that  a  compact  is 
a  Constitution ;  or,  in  other  words,  he  conceives  that  the 
natures  of  the  two  things  are  utterly  incompatible  with 
each  other. 

He  is  very  bold,  and  asserts  that  it  is  new  language  to 
call  "the  Constitution  a  compact." 

"This  is  the  reason,'  says  he,  "which  makes  it  necessary 
to  abandon  the  use  of  Constitutional  language  for  a  new 
vocabulary,  and  to  substitute,  in  place  of  plain  historical 
facts,  a  series  of  assumptions.  This  is  the  reason  why  it 
is  necessary,  to  give  new  names  to  things,  to  speak  of  the 
Constitution,  not  as  a  Constitution,  but  as  a  compact,  and 


IS    DAVIS    A   TRAITOR?  23 

of  the  ratifications  of  the  people  not  as  ratifications,  but  as 
acts  of  accession."*  Again,  he  complains  of  Mr.  Calhoun, 
that  "he  introduces  a  new  word  of  his  own,  viz.,  'compact,' 
as  importing  the  principal  idea,  and  designed  to  play  the 
principal  part,  and  degrades  Constitution  into  an  insignifi 
cant  idle  epithet  attached  to  compact.  The  whole  then 
stands  a  Constitutional  compact!"  He  is  then  particularly 
severe  and  eloquent  upon  the  supposed  outrage  perpe 
trated  on  "our  American  political  grammar,"  in  thus 'de 
grading  "  CONSTITUTION  "  (the  capitals  are  his  own)  from  its 
rightful  rank  "  as  a  noun  substantive."  But,  after  all,  the 
plain,  simple  fact  is,  that  this  "  new  word,"  as  Mr.  Webster 
calls  it,  was  as  familiar  to  the  ears  of  the  authors  of  the 
Constitution  as  any  other  in  the  vocabulary  of  the  great 
Convention  of  1787.  The  terms  Constitution  and  com 
pact  are,  indeed,  twin  words,  and  convertible  in  the  lan 
guage  of  the  fathers. 

Though  "  the  term  Constitutional  affixes  to  the  word 
compact  no  definite  idea,"  says  Mr.  Webster,  and  in  such 
connection  "  is  void  of  all  meaning,"  "yet  it  is  easy,  quite 
easy,  to  see  why  the  gentleman  uses  it  in  these  resolutions." 
Now,  what  is  the  reason,  the  deep  design,  that  induces  Mr. 
Calhoun  to  use  an  epithet  "  so  void  of  all  meaning  "  ?  "  He 
cannot  open  the  book ;"  says  Mr.  Webster,  "  and  look  upon 
our  written  frame  of  government  without  seeing  that  it  is 
called  a  Constitution.  This  may  well  be  appalling  to  him." 
We  cannot  possibly  imagine  that  Mr.  Calhoun  should,  for 
one  moment,  have  been  disturbed  or  alarmed  by  such  a 
discovery  or  revelation.  It  is  certain  that  he  nowhere 
betrays  the  least  symptom  of  dismay  at  "the  appalling" 
consideration  that  the  Constitution  is  really  a  Constitu 
tion.  That  "  noun  substantive "  seems  to  have  inspired 
him  with  no  sort  of  terror  whatever.  On  the  contrary, 
it  appears  to  sit  as  easily  on  his  political  faith  and  to  flow 
as  familiarly  from  his  lips  as  any  other  word  in  the  lan- 

*Speech,  Feb.  16,  1838. 


24  IS   DAVIS   A   TRAITOR? 

guage.  We  can  imagine,  however,  why  the  Northern 
States  should  wish  to  get  rid  of  both  the  idea  of  a  compact 
and  of  the  word ;  why  the  powerful  should  wish  to  oblit 
erate  and  erase  from  the  tablets  of  their  memory  every 
recollection  and  vestige  of  the  solemn  compact  or  bargain 
into  whieh  they  had  entered  with  the  weak,  but  which 
they  have  never  observed  in  good  faith. 

It  is  perfectly  certain  that  Mr.  Webster's  horror  of  the 
term,  eompact,  as  applied  to  the  Constitution,  is  of  com 
paratively  recent  origin.  It  was  wholly  unknown  to  the 
fathers  of  the  Constitution  themselves.  Mr.  Gouverneur 
Morris,  it  is  well  known,  was  one  of  the  most  celebrated 
advocates  for  a  strong  national  government  in  the  Con 
vention  of  1787  ;  and  yet,  in  that  assembly,  he  used  the 
words — "He  came  here  to  form  a  compact  for  the  good  of 
America.  He  was  ready  to  do  so  with  all  the  States.  He 
hoped  and  believed  that  all  would  enter  into  such  a  com 
pact.  If  they  would  not,  he  would  be  ready  to  join  with 
any  States  that  would.  But  as  the  compact  was  to  be  vol 
untary,  it  .is  in  vain  for  the  Eastern  States  to  insist  on 
what  the  Southern  States  will  never  agree  to."*  Thus, 
this  celebrated  representative  of  the  State  of  Pennsylva 
nia,  and  staunch  advocate  of  a  strong  national  government, 
did  not  hesitate  to  call  the  Constitution  a  compact  into 
which  the  States  were  to  enter.  Indeed,  no  one,  at  that 
early  day,  either  before  the  Constitution  was  adopted  or 
afterwards,  hesitated  to  call  it  a  compact. 

Mr.  Gerry,  the  representative  of  Massachusetts,  says, 
"If  nine  out  of  thirteen  (States)  can  dissolve  the  compact, 
six  out  of  nine  will  be  just  as  able  to  dissolve  the  new  one 
hereafter."  Here  again  the  new  Constitution  is  called  a 
compact. 

"  In  the  case  of  a  union  of  people  under  one  Constitu 
tion,"  says  Mr.  Madison,  while  contending  for  the  ratifica 
tion  of  the  new  Constitution  by  the  people,  "  the  nature  of 

*  "Madison  Papers,"  p.  1081-2. 


IS   DAVIS   A   TRAITOR?  25 

the  pact  has  always  been  understood  to  exclude  such  an 
interpretation."*  Thus,  in  the  Convention  of  1787,  Mr. 
Madison  called  the  Constitution  a  compact ;  a  word  which 
he  continued  to  apply  to  it  during  the  whole  course  of  his 
life. 

In  the  celebrated  resolutions  of  Yirginia,  in  1798,  Mr. 
Madison  used  these  words,  "That  this  assembly  doth 
explicitly  and  peremptorily  declare,  that  it  views  the 
powers  of  the  Federal  Government  as  resulting  from  the 
compact,  to  which  the  States  are  parties."  Again,  in  his 
almost  equally  celebrated  letter  to  Mr.  Everett,  in  1830,  he 
calls  "the  Constitution"  "a  compact  among  the  States  in 
their  highest  sovereign  capacity."  In  the  same  letter  Mr. 
Madison  speaks  of  the  States  as  "the  parties  to  the  Con 
stitutional  compact;"  using  the  very  expression  which  is  so 
offensive  to  Mr.  Webster's  new  "political  grammar." 
Nay,  it  was  only  three  years  before,  in  the  great  debate 
on  Foote's  resolutions,  that  Mr.  Webster  himself  had,  like 
every  one  else,  spoken  of  the  Constitution  as  a  compact,  as 
a  bargain  which  was  obligatory  on  the  parties  to  it.  "It 
is  the  original  bargain,"  says  he,  in  that  debate;  "the  com 
pact — let  it  stand;  let  the  advantage  of  it  be  fully  enjoyed. 
The  Union  itself  is  too  full  of  benefits  to  be  hazarded  in 
propositions  for  changing  its  original  basis.  I  go  for  the 
Constitution  as  it  is,  and  for  the  Union  as  it  is."  Nor  is 
this  all.  He  there  indignantly  repels,  both  for  "himself 
and  for  the  North,"  "accusations  which  impute  to  us  a 
disposition  to  evade  the  Constitutional  compact."  Yet,  in 
the  course  of  three  short  years,  he  discovers  that  there  is 
no  compact  to  be  evaded  and  no  bargain  to  be  violated! 
All  such  trammels  are  given  to  the  winds,  and  Behemoth 
is  free!  How  sudden  and  how  wonderful  this  revolution 
in  the  views  and  in  the  vocabulary  of  the  great  orator  of 
New  England  If 

*  Madison  Papers,  p.  1184. 

flhe  great  mind  of  Mr.  Webster  was  in  general  more  like  the 


26  IS   DAVIS    A    TRAITOR? 

-This  language,  in  which  the  Constitution  is  called  a  com 
pact,  is  not  confined  to  Morris,  and  Gerry,  and  Madison, 
and  the  Webster  of  1830.  Mr.  Chief  Justice  Jay,  of  the 
Supreme  Court  of  the  Union,  in  the  case  of  "Chisholm  vs. 
State  of  Georgia,"  expressly  declares  that  "the  Constitu 
tion  of  the  United  States  is  a  compact.''^  "Our  Constitu 
tion  of  the  United  States,"  says  John  Quincy  Adams,  the 
sixth  President  of  the  Eepublic,  "and  all  our  State  Consti 
tutions,  have  been  voluntary  compacts,  deriving  all  their 
authority  from  the  free  consent  of  the  parties  to  them." 
The  Virginia  Eesolutions  of  1798,  already  referred  to  as 
expressing  the  opinion  of  Mr.  Madison,  assert  that  "Vir 
ginia  views  the  powers  of  the  Federal  Government  as 
resulting  from  the  compact  to  which  the  States  are  par 
ties."  Again,  in  the  Virginia  Eeport  of  1800,  it  is  said, 
"The  States  being  parties  to  the  Constitutional  compact," 
&c.  Edmund  Pendleton,  President  of  the  ratifying  Con 
vention  of  Virginia,  in  1788,  in  the  course  of  his  argument 
in  favor  of  the  new  Constitution,  says,  "This  is  the  only 
Government  founded  in  real  compact. "J  Judge  Tucker, 
in  his  commentaries  on  Blackstone,  repeatedly  calls  the 
Constitution  in  question  "a  compact  between  the  States" 
of  the  Union.  The  third  President  of  the  United  States, 

ocean  in  repose  than  in  action ;  and,  as  is  well  known,  his  habitual 
indolence  often  induced  him  to  rely  on  others  for  political  informa 
tion.  No  one  who  will  attentively  compare  his  speech  of  1833  with 
book  III.,  chap.  3,  of  Story's  "  Commentaries  on  the  Constitution," 
can  be  at  any  loss  to  account  for  the  origin  of  his  "  new  political 
grammar,"  his  "new  rules  of  syntax,"  and  his  "  new  vocabulary.'' 
If  he  applies  these  epithets  to  the  doctrines  of  Morris,  and  Gerry, 
and  Madison,  it  is  because  old  things  have  become  new  with  him,  and 
new  things  old.  The  secret  of  this  revolution  will  be  found,  as  we 
shall  soon  prove,  in  the  work  of  Mr.  Justice  Story,  which  work  was 
not  written  in  1830.  Indeed  it  was  not  published  until  1833  ;  but 
then  the  first  volume,  containing  book  III  ,  chap.  3,  was  prepared,  if 
not  printed,  before  the  speech  of  Mr.  Webster,  with  whom  the  author 
was  on  the  most  intimate  terms.  It  would  have  been  well  for  the 
fame  of  Webster,  in  the  eye  of  posterity,  if  he  had  more  carefully  ex 
amined  such  a  question  for  himself. 

f  3  Dall.  R.  p.  419, 

j  Elliot's  Debates,  vol.  iii.,  p.  67. 


IS    DAVIS   A   TRAITOR?  27 

as  well  as  the  sixth,  Thomas  Jefferson  as  well  as  John 
Quincy  Adams,  considered  the  Constitution  "a  compact." 
"The  States,"  says  Jefferson,  "entered  into  a  compact, 
which  is  called  the  Constitution  of  the  United  States.* 
The  Convention  of  Massachusetts,  which  was  called  to 
ratify  the  Constitution  of  the  United  States,  was,  if  possi 
ble,  still  more  emphatic  and  decided  in  the  expression  of 
the  same  opinion.  "Having  impartially  discussed,  and 
fully  considered,"  say  they,  "the  Constitution  of  the  United 
States  of  America,"  we  acknowledge,  "with  grateful 
hearts,  the  goodness  of  the  Supreme  Ruler  of  the  Universe 
in  affording  the  people  of  the  United  States  an  opportu 
nity,  deliberately  and  peaceably,  without  fraud  and  sur 
prise,  of  entering  into  an  explicit  and  solemn  compact  with 
each  other,  by  assenting  to  and  ratifying  a  new  Constitu 
tion,"  &c.  Yet,  in  the  face  of  all  these  high  authorities, 
and  of  a  hundred  more  that  might  be  easily  adduced,  run 
ning  from  James  Madison  in  the  Convention  of  1787  to 
Daniel  Webster  in  the  great  debate  of  1830,  and  embracing 
the  lights  of  all  sections  and  of  all  parties,  it  is  asserted  by 
this  celebrated  statesman,  though  certainly  not  as  a  states 
man,  that  the  term  compact,  as  applied  to  the  Constitu 
tion,  is  "a  new  word,"  is  a  part  and  parcel  of  "the  uncon 
stitutional  language,"  of  the  "new  vocabulary,"  which  has 
been  invented  to  obscure  the  fundamental  principles  of  the 
Government  of  the  United  States,  and  to  justify  secession ! 
Can  posterity  admire  such  an  exhibition  of  his  powers! 
So  far,  indeed,  is  this  from  being  a  new  mode  of  speech, 
that  it  is  one  of  the  most  familiar  words  known  to  the 
fathers  of  the  Constitution  itself,  or  to  its  more  early 
expounders.  Even  the  Federalist,  in  submitting  the  Con 
stitution  to  the  people,  sets  it  before  them  as  "the  com 
pact.'^  "The  man,"  says  Mr.  Webster,  "is  almost  untrue 
to  his  country  who  calls  the  Constitution  a  compact."  It 

*  Correspondence.  Vol.  iv..  p.  415. 
f  No.  XXXIX. 


28  IS    DAVIS    A   TRAITOR? 

were,  indeed,  much  nearer  the  truth  to  say  thai;  the  man 
is  not  only  almost  but  altogether  untrue  to  himself,  as  well 
as  to  the  most  solemn  records  of  his  country,  who  can 
assert  that  the  term  compact,  as  applied  to  the  Constitu 
tion,  is  "a  new  word,"  or  the  exponent  of  a  new  idea. 

The  arguments  of  Mr.  Webster  to  prove  that  the  Con 
stitution  is  not  a  compact,  are,  if  possible,  as  unfortunate 
as  his  assertions.  If  words  be  not  things  in  reality,  as 
well  as  in  effect,  then  it  will  be  found  that  his  arguments 
possess  an  exceedingly  small  value.  There  are  two  words, 
in  particular,  in  the  use  of  which  he  displays  far  more  of 
rhetorical  legerdemain  than  of  rigid  logic.  These  are  the 
two  words  "compact"  and  "Constitution." 

No  one  pretends,  for  a  moment,  that  every  compact  is  a 
Constitution.  There  are  compacts  about  soap  and  candles, 
about  pepper  and  calicoes,  or  some  such  trifling  thing, 
which  no  one  would  call  a  Constitution.  It  is  only  when 
a  compact  has  for  its  object  the  institution  or  organiza 
tion  of  a  political  society,  or  a  civil  government, 'that  it  is 
properly  denominated  a  Constitution.  Hence,  in  the  ordi 
nary  acceptation  of  the  words,  compact  falls  far  below  the 
high-sounding  noun  substantive  Constitution;  a  circum 
stance  of  which  any  rhetorician  may,  if  he  choose,  very 
easily  avail  himself.  Mr.  Webster  has  done  so,  and  that, 
too,  with  no  little  popular  eifect.  "  We  know  no  more  of  a 
Constitutional  compact  between  sovereign  powers,"  says 
he,  "than  we  do  of  a  Constitutional  indenture  of  partner 
ship,  a  Constitutional  deed  of  conveyance,  or  a  Constitu 
tional  bill  of  exchange.  But  we  know  what  the  Constitu 
tion  is,"  &c.  Perhaps  we. do,  and  perhaps  we  do  not;  that 
is  the  very  point  in  dispute.  But  certain  it  is,  that  if  we 
do  know  what  the  Constitution  is  we  need  not  seek  to  illus 
trate  its  nature  or  to  exhibit  its  history  by  any  such  decep 
tive  use  of  words.  Akin  to  this  sort  of  reasoning,  or  rhet 
oric,  is  all  that  is  said  by  Mr.  Webster  and  Mr.  Justice 
Story  about  lowering  the  Constitution  by  considering  it  as 


IS   DAVIS   A   TRAITOR?  29 

a  "  mere  compact,"  or  as  "  nothing  but  a  compact."  It  is, 
indeed,  something  more  than  a  compact,  something  more 
high,  and  holy,  and  honorable.  Though  in  its  nature  it  is 
a  mere  compact,  yet  in  its  object,  which  is  no  less  than  to 
institute  or  organize  a  political  society,  it  is  the  most 
solemn  and  sacred  of  all  earthly  transactions.  Such  com 
pacts  should  not  be  despised,  nor  should  they  be  explained 
away,  or  trampled  under  foot  by  the  powerful;  they  involve 
the  destiny  of  millions. 


CHAPTEE   VI. 

The  Constitution  of  1787  a  Compact. 

"A  Constitution,"  says  Mr.  Webster,  "is  certainly  not  a 
league,  compact,  or  confederation,  but  a  fundamental  law. 

Do  we  need  to  be  informed  in  this  country  what  a 

Constitution  is?  Is  it  not  an  idea  perfectly  familiar,  defi 
nite,  and  well  settled?  We  are  at  no  loss  to  understand 
what  is  meant  by  the  Constitution  of  one  of  the  States; 
and  the  Constitution  of  the  United  States  speaks  of  itself 
as  being  an  instrument  of  the  same  nature."  Now  it  is  a 
very  remarkable  fact  that  Alexander  Hamilton  was  just  as 
clearly  and  decidedly  of  opinion  that  the  Constitution  of  a 
State  is  a  compact,  as  Mr.  Webster  was  of  the  opposite 
notion.  Thus,  says  he,  in  relation  to  the  Constitution  of 
]STew  York,  "The  Constitution  is  the  compact  made 
between  the  society  at  large  and  each  individual.  The 
society,  therefore,  cannot,  without  breach  of  faith  and 
injustice,  refuse  to  any  individual  a  single  advantage  which 
he  derives  under  the  compact,  no  more  than  one  man  can 
refuse  to  perform  an  agreement  with  another.  If  the  com 
munity  have  good  reason  for  abrogating  the  old  compact 
and  establishing  a  new  one  it  undoubtedly  has  a  right  to 
do  it;  but  until  the  compact  is  dissolved  with  the  same 
solemnity  and  certainty  with  which  it  was  made,  the 
society,  as  well  as  individuals,  are  bound  by  it."*  Indeed, 
this  idea,  that  the  Constitution  of  an  American  State  is  a 
compact,  made  and  entered  into,  was  far  more  familiar  to 

*  Hamilton's  Works,  vol.  ii.,  p.  322. 


IS   DAVIS    A    TRAITOR?  31 

Alexander  Hamilton  and  to  his  age — the  age  of  the  Con 
stitution  itself — than  the  contrary  notion  was  to  Mr.  Web 
ster  and  to  his  school. 

The  Constitution  of  Massachusetts  not  only  calls  itself  a 
compact,  but  the  people  therein  acknowledge,  with  grate 
ful  hearts,  that  Providence  has  afforded  them  an  opportu 
nity  of  entering  into  this  "original,  explicit,  and  solemn 
compact."  The  same  State,  as  we  have  seen,  in  her  ordi 
nance  of  ratification,  makes  the  same  acknowledgment  of 
the  goodness  of  the  Supreme  Ruler  of  the  Universe  for 
affording  the  people  of  the  United  States  an  opportunity 
of  entering  into  "an  explicit  and  solemn  compact  by 
assenting  to,  and  ratifying  a  new  Constitution."  Now, 
both  Story  and  Webster  lay  great  stress  on  the  fact  that 
the  Constitution  of  the  United  States  does  not  call  itself  a 
compact.  But  here  they  have  a  Constitution,  and  it  is  that 
of  their  own  State,  which  calls  itself  an  explicit  and  solemn 
compact — and  how  do  they  receive  this  language?  There 
is  not,  perhaps  in  all  literature  an  attempt  more  awkward, 
or  a  failure  more  signal,  to  explain  away  the  clear  and 
unequivocal  language  of  a  written  instrument,  than  is  here 
exhibited  by  these  two  great  sophists.  It  deserves  a  most 
especial  notice. 

Mr.  Justice  Story  first  gets  away  from  the  plain  language 
of  the  instrument,  and  then  calls  around  him  the  darkness 
of  one  of  the  very  darkest  metaphysical  theories  of  Europe, 
which  he  introduces  to  our  notice,  however,  by  a  very  just 
remark.  "Mr.  Justice  Blackstone,"  says  he,  "has  very 
justly  observed  that  the  theory  of  an  original  contract 
upon  the  first  formation  of  society  is  a  visionary  notion." 
Granted ;  but  what  has  this  to  do  with  the  Constitution  of 
Massachusetts?  Every  Constitution  we  admit  is  not  a 
compact,  any  more  than  every  compact  is  a  Constitution. 
Most  Constitutions  have  indeed  £rown,  and  only  a  few  in 
these  later  ages  of  the  world  have  been  made.  It  has  been 
the  boast  of  America,  and  of  Virginia  especially,  that  she 


32  IS   DAVIS   A    TRAITOR? 

was  the  first  in  the  history  of  mankind  to  make  a  complete 
Constitution,  to  reduce  it  to  writing,  and,  in  the  name  of 
the  people  in  Convention  assembled,  to  adopt  and  sign  it 
for  the  government  of  themselves  and  their  posterity.     By 
those  authors,  such  as  Blackstone,  and  Paley,  and  Hume, 
who  reject  the  theory  of  an  original  contract  as  "a  vision 
ary  notion,"  as  having  no  foundation  in  history  or  in  fact, 
it  is  not  denied,  but  expressly   admitted,  that  a  people 
might,  if  they  chose,  enter  into  such  a  compact.     Paley,  in 
spite  of  his  opposition  to  the  theory  of  the  social  compact, 
admits  that  something  of  the  kind  has  been  entered  into  in 
America.     "The  present  age  has,"  says  he,  "been  witness 
to  a  transaction  which  bears  the  nearest  resemblance  to 
this  political  idea  (that  of  an  original  compact)  of  any  of 
which  history  has  preserved  the  account  or  memory.     I 
refer  to  the  establishment  of  the  United  States  of  North 
America.     "We  saw  the  people  assembled  to  elect  deputies 
for  the  avowed  purpose  of  framing  the  Constitution  of  a 
new  empire.     We  saw  this  deputation  of  the  people  delib 
erating  and  resolving  upon  a  form  of  government,  erecting 
a  permanent  legislature,  distributing  the  functions  of  sov 
ereignty,  establishing  and  promulgating  a  code  of  funda 
mental  ordinances  which  were  to  be  considered  by  suc 
ceeding  generations,  not  merely  as  acts  and  laws  of  the 
State,  but  as  the  very  terms  and  conditions  of  the  Confed 
eration."     Indeed,  Paley  does  not  doubt  that  it  was  a  com 
pact  ;  he  only  seems  to  question  whether  it  may  be  called 
original,  since  "much  was  pre-supposed."     For,  "in  settling 
the  Constitution,"  says  he,  "many  important  parts  were 
presumed  to  be  already  settled.     The  qualifications  of  the 
constituents  who  were  admitted  to  vote  in  the  election  of 
members  of  Congress,  as  well  as  the  modes  of  electing  the 
representatives,  were  taken  from  the  old  forms  of  govern 
ment."     It  is  true  that,  in  framing  the  Constitution  of  the 
Federal  Union,  these  things  were  adopted  from  the  State 
Governments;  but  if  this  prevented  the   compact   from 


IS    DAVIS   A   TRAITOR?  33 

being  original  it  certainly  did  not  keep  it  from  being  a 
compact.  In  fact,  these  words  of  Paley  refer  to  the  old 
Articles  of  Confederation,  and  not  to  the  new  Constitu 
tion,  for  they  were  written  and  published  in  1785*,  two 
years  before  the  Convention  met  to  frame  this  new  instru 
ment  or  plan  of  government.  Both  "Webster  and  Story, 
like  all  others,  admit  that  the  old  Articles  of  Confederation 
were  "a  compact  between  the  States." 

The  question  is,  whether  the  Constitution  of  Massachu 
setts  is  an  instrument  of  the  same  nature,  or,  in  other 
words,  whether  it  is  a  compact  ?  The  more  than  doubtful 
metaphysical  theories  of  Europe  have  nothing  to  do  with 
this  question.  The  darkness  of  those  theories  is  not  per 
mitted  either  by  Webster  or  Story  to  obliterate  or  obscure 
the  fact  that  the  Articles  of  Confederation,  or  the  Constitu 
tion  to  which  Paley  refers,  wTas  a  compact.  Why,  then, 
is  it  brought  to  bear  on  the  Constitution  of  Massachusetts? 
Is  the  political  history  of  this  country,  so  widely  and  so 
amazingly  different  from  that  of  all  others,  to  be  read 
and  interpreted  in  the  light,  or  rather  in  the  darkness,  of 
those  vague  and  visionary  theories  respecting  the  origin  of 
the  governments  of  the  Old  World  which  have  not  the  least 
semblance  nor  shadow  of  a  foundation  in  their  respective 
histories  ?  The  Constitution  of  Great  Britain,  for  exam 
ple,  has  grown ;  the  Constitution  of  Massachusetts  was 
made.  The  one  is  the  slow  but  mighty  product  of  the 
labor  of  ages  ;  the  other  is  the  creation  of  yesterday.  The 
one  is  written ;  the  other  is  traditional.  The  most  impor 
tant  and  beneficent  elements  of  the  one  resulted  from  the 
Norman  Conquest,  and  the  gradual  rise  of  the  lower  orders 
in  cultivation,  in  wealth,  and  in  importance.  Every  pro 
vision  of  the  other,  without  a  single  exception,  was  framed 
and  adopted  by  the  people  of  Massachusetts  in  Conven 
tion  assembled.  Hence  the  more  than  doubtful  theories 
respecting  the  origin  and  the  nature  of  the  one  have  rioth- 

*  See  Paley' s  Life,  attached  to  his  works,  p.  13. 
3* 


34  IS   DAVIS   A   TRAITOR? 

ing  to  do  with  the  interpretation  of  the  plain  and 
unquestionable  facts  of  the  other.  These  facts  should 
be  allowed  to  speak  for  themselves,  and  not  to  be  dis 
credited  or  obscured  by  involving  them  in  the  fate  of 
any  doubtful  or  false  hypothesis  whatever. 

Nor  is  this  all.  As  there  is  not  the  slightest  foundation 
in  history  for  the  theory  of  an  original  contract  in  rela 
tion  to  the  governments  of  Europe,  so  theorists  have  been 
forced  to  adopt  the  hypothesis  of  an  "implied  compact"  as 
constituting  at  once  the  origin,  the  basis,  and  the  binding 
authority  of  civil  society.  Mr.  Justice  Story  finds  this 
idea  of  an  "implied"  contract,  or  consent,  in  Blackstone;* 
and  he  does  not  hesitate  to  assert  that  it  is  in  this  sense 
that  the  Constitution  of  Massachusetts  calls  itself  a  com. 
pact.  According  to  this  hypothesis  the  consent  of  every 
subject  is  implied,  and  this  implication  is  forced  upon  the 
unwilling.  It  is  an  implied  consent,  even  in  spite  of  an 
actual  dissent.  Did  the  people  of  Massachusetts  then 
acknowledge,  with  grateful  hearts,  that  Providence  had 
afforded  them  an  opportunity  of  entering  into  an  "im 
plied  "  compact  ?  Did  they  thus  pour  forth  in  their  Con 
stitution  devout  thanks  for  a  privilege  which  they  could 
not  possibly  have  avoided,  and  which  has  been  fully 
enjoyed  by  every  subject  of  every  despotic  government  in 
the  world?  Did  they  thank  the  Supreme  Ruler  of  the 
Universe  for  an  -  opportunity  of  entering  into  a  forced 
implication,  and  yet  ignorant  of  their  bonds,  most  foolish 
ly  style  it  an  "original,  explicit,  and  solemn  compact?" 
If  we  may  believe  Mr.  Justice  Story,  such  was  precisely 
the  absurd  and  ridiculous  farce  enacted  by  the  people  of 
Massachusetts. 

Mr.  Webster  treads  in  the  footsteps  of  Mr.  Justice  Story. 
"The  Convention,"  says  the  Massachusetts  formula  of 
ratification,  "having  impartially  examined  and  fully  con 
sidered  the  Constitution  of  the  United  States  of  America, 

*  "  Commentaries,"  vol.  i.,  book  iii.,  chap,  iii.,  p.  298. 


IS   DAVIS    A   TRAITOR?  35 

submitted  to  us and  acknowledging  with  grateful 

hearts  the  goodness  of  the  Supreme  Buler  of  the  Universe 
in  affording  the  people  of  the  United  States,  in  the  course 
of  His  providence,  an  opportunity,  deliberately  and  peace 
ably,  without  fraud  or  surprise,  of  entering  into  an  explicit 
and  solemn  compact  with  each  other,  by  assenting  to  and 
ratifying  a  new  Constitution,"  &c.  Now  is  this  the  lan 
guage  of  an  implied  or  of  an  explicit  and  deliberate  com 
pact?  Yet  in  the  face  of  this  language  Mr.  Webster 
asserts  that  the  Convention  of  Massachusetts  and  New 
Hampshire  merely  speak  of  compact  in  the  sense  of  "Euro 
pean  writers!"  Now, the  European' writers  here  referred 
to  mean  either  an  explicit  or  an  implied  consent.  But  the 
idea  of  an  explicit  consent  or  compact  is  rejected  by  Mr. 
Justice  Story  and  Mr.  Webster,  as  "a  visionary  notion,"  as 
well  as  by  Blackstone,  Hume,  Paley,  and  a  host  of  others. 
Hence  Mr.  Webster  must  be  understood  to  refer  to  those 
European  writers  who  maintain  the  hypothesis  of  an 
implied  compact.  Hence  the  people  of  Massachusetts  are 
represented  by  him  as  being  exceedingly  grateful  for  the 
opportunity  of  freely  and  deliberately  entering  into  an 
"implied  compact,"  which,  however,  they  blindly  call  ."an 
explicit  and  solemn  "  one !  They  are  represented  as  vol 
untarily  entering  into  an  implied  compact,  a  thing  which 
is  never  made  or  entered  into  at  all,  but  is  only  an  impli 
cation  or  fiction  of  law,  from  which  there  is  no  escape ! 

The  Constitution,  says  Mr.  Webster,  is  "certainly  not  a 
compact."  He  lays  great  stress  on  the  fact  that  it  does 
not  call  itself  a  compact.  Nor  do  the  old  Articles  of  Con 
federation  call  themselves  a  compact;  and  yet  Mr.  Web 
ster  admits  that  they  were  "a  compact  between  the 
States."  They  call  themselves,  it  is  true,  "a  league  of 
friendship ;"  but  then  a  league  of  friendship  is  not,  ex  vi  ter 
mini,  a  social  compact  or  a  political  union.  "We  speak  of 
ordaining  Constitutions,"  says  Mr.  Webster;  "but  we  do 
not  speak  of  ordaining  leagues  and  compacts."  True, 


36  IS    DAVIS   A   TRAITOR? 

because  our  language  is  determined  by  the  ordinary  and 
more  frequent  transactions  of  society.  Hence  we  nat 
urally  speak  of  making  or  entering  into  leagues  and  com 
pacts  in  conformity  with  the  every-day  use  of  language. 
But  when  compacts  relate  to  the  institution  of  a  new  gov 
ernment,  and  when  all  their  terms  and  articles  and  stipu 
lations  are  agreed  upon,  then  we  enter  into  them  by 
ordaining  them  as  Constitutions.  Is  not  this  so? 

Every  compact  is  not  a  Constitution.  But  the  Articles 
of  Confederation,  which  are  admitted  to  be  a  compact, 
were  a  Constitution.  This  is  clear  from  Mr.  Webster's 
own  definition.  "What  is  a  Constitution?"  says  he;  and 
he  replies,  it  is  "a  fundamental  law."  Now,  most  assu 
redly  the  articles  in  question  constituted  the  "fundamen 
tal  law"  of  the  old  Union.  They  are,  as  we  have  already 
seen,  very  properly  called  by  Dr.  Paley  "a  code  of  funda 
mental  ordinances,  which  were  to  be  considered  by  suc 
ceeding  generations  not  merely  as  laws  and  acts" "but 

as  limitations  of  power,  which  were  to  control  and  regu 
late  the  future  legislation."  This  is,  indeed,  the  definition 
of  a  Constitution ;  and  hence  Dr.  Paley  calls  those  "  terms 
and  conditions  of  the  Confederation"  a  "Constitution." 

But  on  this  point  there  is  much  higher  authority  than 
that  of  Dr.  Paley.  The  "Address  of  the  Annapolis  Con 
vention,"  penned,  as  is  well  known,  by  Alexander  Hamil 
ton,  recommends  commissioners  to  meet  at  Philadelphia, 
"to  take  into  consideration  the  condition  of  the  "United 
States,  and  to  devise  such  further  provisions  as  shall 
appear  to  them  necessary  to  render  the  Constitution  of  the 
Federal  government  adequate  to  the  exigencies  of  the 
Union."*  Again,  he  says,  in  the  ratifying  convention  of 
New  York,  "The  Confederation  was  framed  amidst  the 
agitation  and  tumult  of  society.  It  was  composed  of 
unsound  materials  put  together  in  haste.  Men  of  intelli 
gence  discovered  the  feebleness  of  the  structure  in  the 

*  "  Hamilton'3  Works,"  vol.  ii.,  p.  339. 


IS    DAVIS    A    TRAITOR?  37 

first  stages  of  its  existence ;  but  the  great  body  of  the 
people,  too  much  engrossed  with  their  distresses  to  con 
template  any  but  the  immediate  causes  of  them,  were 
ignorant  of  the  defects  of  their  constitution"*  Mr.  Madi 
son  also  speaks  of  "the  Federal  Constitution"  under  the 
old  Confederation. f 

"The  Constitution,"  says  Mr.  Webster,  "speaks  of  that 
political  system  which,  is  established  as  'the  government 
of  the  United  States.'  Is  it  not  doing  strange  violence  to 
language  to  call  a  league  or  compact  between  sovereign 
powers  a  government?"  Is  it  not,  I  reply,  requiring  too 
much  of  a  compact  -to  be  both  the  Constitution  and  the 
government?  No  one  pretends  that  either  a  compact  or 
the  Constitution  is  the  government  of  the  United  States. 
Mr.  Webster  himself  makes  the  distinction  in  the  two 
next  sentences.  "The  government  of  a  state,"  says  he, 
"is  that  organization  in  which  the  political  power  resides. 
It  is  the  political  being  created  by  the  Constitution  or 
fundamental  law."  Thus  the  government  is  created  by 
the  Constitution ;  and  if  a  compact  were  both  Constitu 
tion  and  government,  then  the  creature  would  be  its  own 
creator.  All  I  contend  for  is,  that  in  this  particular 
case  the  compact  is  a  Constitution,  and  the  Constitution 
is  a  compact.  Neither  the  one  nor  the  other  is  the  gov 
ernment.  The  Constitution  is  neither  the  executive,  nor 
the  legislature,  nor  the  judiciary,  nor  any  other  conceiva 
ble  functionary  of  the  government  of  which  it  is  the 
supreme  law. 

But  the  design  of  Mr.  Webster's  argument  is  to  prove 
that  no  government  was  established  by  the  old  articles  of 
Union,  or  under  the  compact  of  the  Confederation.  In 
designating  those  powers  which  he  deems  essential  to  the 
very  existence  of  a  government,  he  specifies  those  which 

*  Hamilton's  Works,  vol.  ii.,  p.  445. 

f"  Madison  Papers."  Index,  cxi.,  "Convention  to  revise  the 
Federal  Constitution.  587,  617,  619." 


38  IS   DAVIS   A   TRAITOR? 

did  not  belong  to  the  legislature  of  the  Confederacy,  or 
which  he  supposes  did  not  belong  to  it;  and  then  he  adds, 
"when  it  ceases  to  possess  this  power  it  is  no  longer  a 
government,"  and  consequently  it  is  doing  strange  violence 
to  language  to  call  it  one. 

We  have  already  seen  that  Alexander  Hamilton,  in 
speaking  of  the  Confederacy,  calls  it  the  "Federal  govern 
ment."  ""We  saw  the  deputation  of  the  people,"  says  Dr. 
Paley,  "  deliberating  and  resolving  upon  a  form  of  govern 
ment,  erecting  a  public  legislature,  distributing  the  func 
tions  of  sovereignty,  establishing  and  promulgating  a  code 
of  fundamental  ordinances."  We  cannot  open  "Curtis's 
History  of  the  Constitution,"  and  turn  to  the  appropriate 
heads,  without  seeing  that  he  discusses  the  "Nature  of  the 
government  established  by  the  Confederation,"*  or  the 
form  of  the  government  established  by  it;"f  or  without 
perceiving  that  the  same  thing  is  habitually  and  familiarly 
called  a  government.  Nor  can  we  look  into  the  comment 
aries  of  Mr.  Justice  Story,  and  cast  our  eyes  over  the 
pages  in  which  he  treats  of  the  first  Confederation,  with 
out  discovering  that  he  frequently  speaks  of  the  "general 
government,"  J  or  the  "national  government  "§  established 
by  it.  In  the  very  first  sentence  of  "The  Federalist,"  as 
well  as  in  various  other  sentences  of  the  same  work,  "the 
existing  Federal  government"  is  spoken  of  just  as  if  no 
one  entertained  a  doubt  as  to  its  real  nature  or  its  name. 

*  Vol.  i.,  chap,  vi.,  p.  142. 

flbid,  p.   143. 

j  Vol.  i..  Book  II.,  chap,  i.,  p.  180  5  Book  III.,  chap,  ii.,  p.  280. 

I* Ibid,  Book  III.,  chap,  ii.,  p.  260. 


CHAPTEE     VII. 

The  Constitution  of  1787  a  Compact. 

MR.  WEBSTER  admits  that  the  Constitution  is  "founded 
on  consent  or  agreement,  or  on  compact;"  meaning  no  more 
by  that  word  than  "voluntary  consent  or  agreement." 
But  he  denies  that  it  is  itself  a  compact,  "The  Constitu 
tion  is  not  a  contract,"  says  he,  "but  the  result  of  a  con 
tract  ;  meaning  no  more  by  contract  than  assent.  Founded 
on  consent  it  is  a  government  proper."  Now,  Mr.  Web 
ster  himself  being  the  judge,  the  Constitution  is  not  a  gov 
ernment  at  all;  for  a  government  is,  says  he,  "the  political 
being  created  by  the  Constitution  or  fundamental  law." 
But  "founded  on  consent,"  not  on  implied  or  necessitated, 
but  on  "voluntary  consent,"  it  is  a  compact  proper.  Mr. 
Webster  is  compelled  to  call  the  Constitution  a  govern 
ment,  in  direct  violation  of  his  own  definitions  and  princi 
ples,  in  order  to  keep  from  calling  it  a  compact. 

In  what  manner  the  Constitution  is  founded  on  consent, 
on  a  deliberate  and  voluntary  consent,  Mr.  Webster  has 
himself  told  us,  only  a  few  pages  in  advance  of  the  above 
admission.  "It  is  to  be  remarked,"  says  he,  "that  'the 
Constitution  began  to  speak  only  after  its  adoption.  Until 
it  was  ratified  by  nine  States  it  was  but  a  proposal,  the 
mere  draft  of  an  instrument.  It  was  like  "a  deed  drawn 
but  not  executed."  This  is  most  exactly  and  perfectly 
true.  The  Constitution  was  a  dead  letter,  a  powerless  and 
inoperative  thing,  until  the  ratification  or  solemn  "volun 
tary  assent"  of  nine  States  breathed  into  it  the  breath  of 


40  IS    DAVIS    A    TRAITOR? 

life.  It  was  from  this  consent,  from  this  compact  of  nine 
States,  that  "the  Constitution  resulted"  as  a  living  or 
an  authoritative  document.  But  when  the  nine  States 
assented  to  that  "proposal  or  mere  draft  of  an  instru 
ment,"  and  ratified  the  same  by  signing  it,  then  each  and 
every  article  therein  specified  and  written  became  an  arti 
cle  of  agreement  between  the  parties  to  it.  "It  was  like 
a  deed  drawn  but  not  executed."  But  when  executed  or 
ratified  it  was  then  like  a  deed  signed  by  the  parties;  and 
all  the  written  articles  thereof  became  articles  of  agree 
ment  between  the  parties.  Thus  the  Constitution  not 
only  resulted  from  the  compact  of  the  nine  States,  but 
became  itself  the  compact ;  or,  in  other  words,  the  written 
expression  of  the  terms,  the  conditions,  and  the  articles 
of  the  compact.  This  is  what  we  mean  by  calling  the 
Constitution  a  compact  between  the  States.  And  is  not 
this  the  language  of  truth  ? 

Now,  on  what  conditions,  or  in  what  cases,  does  such 
voluntary  consent  become  a  compact  proper?  Each  of 
the  nine  States,  as  it  assented  to  and  ratified  the  Constitu 
tion,  agreed  to  all  its  terms  and  articles.  It  agreed  to 
forego  the  exercise  of  various  powers,  and  to  assume  vari 
ous  important  liabilities,  in  consideration  that  eight  other 
States  would  do  precisely  the  same  thing.  And  it  also 
agreed  that  the  powers  thus  delegated  by  the  nine  States, 
or  conferred  on  the  general  government  to  be  erected  for 
the  common  good,  should  be  distributed,  exercised,  lim 
ited,  and  controlled,  according  to  the  terms  and  articles 
of  the  Constitution.  Is  not  this  a  compact  proper?  Have 
we  not  here  mutual  promises,  each  State  parting  with 
what  it  possessed,  and,  in  consideration  thereof,  seeking 
to  derive  some  benefit  from  the  others?  If  so,  then  is  not 
this  a  compact  in  the  proper  sense  of  the  word? 

The  same  idea  is  perfectly  expressed  by  Mr.  Webster, 
in  the  speech  before  us.  "  On  entering  into  the  Union,1' 
says  he,  "the  people  of  each  State  gave  up  a  part  of  their 


IS    DAVIS    A    TRAITOR?  41 

own  power  to  make  laws  for  themselves,  in  consideration 
that,  as  to  common  objects,  they  should  have  a  part  in 
making  laws  for  other  States."  Here  is  the  voluntary 
relinquishment  on  the  one  part,  and  the  valuable  consider 
ation  on  the  other.  Is  not  this  a  contract  proper?  If  not, 
then  have  Blackstone,  and  Kent,  and  Pothier,  and  Domat, 
and  Story  written  in  vain  on  the  nature  and  law  of  con 
tracts.  If  not,  then  indeed  may  we  despair  of  ever  arriv 
ing  at  the  meaning  of  any  one  word  in  any  one  language 
under  the  sun. 

It  possesses  every  conceivable  attribute  of  a  valid  con 
tract.  1.  There  were  "the  parties  capable  of  contract 
ing" — the  States.  2.  It  is  admitted  to  have  been  "volun 
tary."  3.  There  was  ,"the  sufficient  consideration" — the 
powers  surrendered,  and  the  liabilities  incurred.  Thus  it 
fully  answers  to  every  condition  laid  down  by  Judge 
Story  himself,*  as  the  tests  or  criteria  of  a  contract  proper. 
It  bears  no  resemblance  to  those  imaginary  transactions 
w^hich  certain  European  writers  have  invented,,  to  explain 
the  origin  of  their  governments,  and  to  give  stability  to 
their  political  theories  by  fastening  them,  as  with  anchors, 
to  past  ages.  On  the  contrary,  it  is  historical  and  real. 
The  time  and  the  manner,  the  substance  and  the  form,  and 
all  the  stipulations,  are  written  down  and  known.  It  was 
deliberately  and  solemnly  entered  into  yesterday;  and  it 
is  as  deliberately  and  solemnly  denied  to-day.  Such  is  the 
incurable  sophistry  of  power!  ' 

The  constitution  of  England  is  not  a  compact.  There 
is  not,  in  all  the  history  of  England,  the  least  intimation 
of  the  people's  having  assembled,  either  by  themselves  or 
by  their  representatives,  to  establish  the  institution  of 
King,  or  Lords,  or  Commons.  Yet  these  three  powers 
constitute  the  main  features  in  the  government  of  Great 
Britain.  Each  power  holding  the  balance  between  the 
other  two,  so  as  to  prevent  either  from  gaining  the  ascend- 

*  Conflict  of  Laws,  p.  307. 


42  IS   DAVIS   A   TRAITOR? 

ancy,  is  what  forms  the  stable  equilibrium  of  the  constitu 
tion  of  England.  But  yet  certain  parts  of  the  British  con 
stitution  are  compacts,  and  are  so  called  by  writers  who 
reject  the  theory  of  a  compact  as  to  the  whole.  According 
to  De  Lolme  and  other  authors,  Great  Britain  owes  her 
admirable  constitution  to  the  Norman  conquest  rather  than 
to  compact.  "It  is  to  the  era  of  the  conquest,"  says  he, 
"that  we  are  to  look  for  the  real  foundation  of  the  English 
constitution."  Yet  changes  and  improvements  in  that 
constitution  which,  instead  of  growing,  were  made  by 
competent  parties,  he  calls  compacts.  Thus,  says  he,  in 
reference  to  the  accession  of  William  III.  to  the  throne, 
"care  was  taken  to  repair  the  breaches  which  had  been 
made  in  the  constitution,  as  well  as  to  prevent  new  ones, 
and  advantage  was  taken  of  the  rare  opportunity  of  enter 
ing  into  an  original  and  express  compact  between  king 
and  people."*  Then,  after  having  specified  some  of  the 
improvements  made  in  the  constitution  by  this  compact, 
he  adds,  "Lastly,  the  keystone  was  put  to  the  arch  by  the 
final  establishment  of  the  liberty  of  the  press.  The  Revo 
lution  of  1689  is,  therefore,  the  third  grand  era  in  the  his 
tory  of  the  constitution  of  England."  .  Again,  he  says, 
"Without  mentioning  the  compacts  which  were  made  with 
the  first  Kings  of  the  Norman  4ine,  let  us  only  cast  our 
eyes  on  Magna  Charta,  which  is  still  the  foundation  of 
English  liberty,  f  being  the  great  compact  by  which  the 
Kings,  the  barons,  and  the  people  J  entered  into  certain 
mutual  stipulations  respecting  the  prerogatives  of  the 
Crown  and  the  rights  of  the  subject." 

Thus  the  English  revolution,  like  our  own,  was  followed 
by  a  compact ;  and  the  only  difference  was  that  the  com 
pact  of  1688  was  in  addition  to  an  old  constitution,  whereas 
the  compact  of  1788  was  a  constitution  in  toto  celo. 

*  De  Lolme  on  the  Constitution,  p.  48. 

f  Ibid,  p.  287. 

j  I  say  the  people,  because  those  who  followed  the  barons  at  Run- 
nymede  demanded  and  obtained  stipulations  in  favor  of  the  people 
•BS  well  as  in  favor  of  their  leaders. 


IS   DAVIS   A   TRAITOR?  43 

Locke,  the  great  popular  champion  of  the  theory  of  the 
social  compact,  was  then  in  the  ascendant  in  the  tFnitecl 
States,  as  he  was  with  the  Whigs  in  England.  That 
theory,  though  exploded  now,  was  then  almost  universally 
received  in  America.  That  is  to  say,  exploded  by  showing 
that  there  is  no  historical  evidence  of  any  such  compact  at 
the  origin  of  the  governments  of  .the  Old  World,  and  that 
the  alleged  transaction  was  fictitious.*  Bat  the  fiction, 
which  had  been  only  partially  realized  at  the  end  of  revo 
lutions,  and  not  at  the  beginning  of  societies,  became  a 
fact  in  the  hands  of  American  legislators.  In  the  language 
of  Governor  Morris,  they  came  to  the  convention  of  1787 
"to  make  a  compact,"  and  they  made  one.  But  this  draft 
of  a  compact,  we  are  told,  calls  itself  a  constitution,  and 
not  a  compact  at  all.  Yery  well.  Suppose  it  had  called 
itself  a  compact,  even  an  "original,  explicit,  and  solemn 
compact,"  would  it  not  have  been  just  as  easy  for  Mr. 
Justice  Story  to  affirm  that  this  only  meant  an  "implied 
contract,"  as  it  was  for  him  to  do  the  same  thing  in  regard 
to  the  Constitution  of  Massachusetts  ?  But  although  the 
convention  of  1787  did  not,  on  the  very  face  of  the  Consti 
tution,  call  itself  a  compact,  yet  in  the  letter  which,  by 
their  "unanimous  order,"  was  dispatched  with  that  instru 
ment  to  the  President  of  Congress,  they  use  the  same  lan 
guage  in  describing  the  nature  of  the  transaction,  that  is 

*  This  is  the  ground  taken,  and  unanswerably  maintained  by  Hume, 
in  his  essay  on  the  "Original  Contract."  Essays,"  vol.  i.,  Essay 
12.  The  theory  of  Rousseau  is  rejected  by  M.  Comte  ("  Theorie  de 
Legislation,"  liv.  i.  c.  2)  on  the  same  ground.  Sir  William  Temple 
("  Works,"  vol.  ii.  pp.  37,  46)  had  previously  rejected  the  doctrine 
of  the  ''Social  Contract."  Kant,  the  philosopher  of  Konigsberg, 
treats  it  as  a  frivolous  and  impractical  notion.  Heeren  ("  On  Polit 
ical  Theories,"  p.  239)  says  that  a  social  contract  neither  was,  nor 
could  have  been,  actually  concluded.  Stahl  ( ' '  Philosophy  of  Rights, ' ' 
vol.  ii.,  partii.,  p.  142)  rejects  the  doctrine  as  visionary.  Godwin, 
likewise  ("  Political  Justice,"  book  iii.,  c.  2  and  3)  rejects  it.  The 
doctrine  of  the  social  compact  is  subjected  to  an  exhaustive  analysis 
by  Mr.  Austin  ("Prov.  of  Jurisprudence,"  331 — 71), and  triumph 
antly  refuted.  Jeremy  Bentham  likewise  rejects  the  same  hypothesis 
as  visionary. 


44  IS   DAVIS   A   TRAITOR? 

employed  by  Sidney,  and  Locke,  and  Kousseau  to  define 
"the  social  contract,"  as  we  shall  hereafter  see. 

Although  Mr.  Justice  Story  endeavors  to  bring  discredit 
on  the  "explicit  and  solemn"  compacts  of  the  New  World, 
by  identifying  them  with  the  vague  and  visionary  theories 
of  the  Old,  yet  he  is  perfectly  aware  of  the  difference 
between  the  fact  in  the  one  case  and  the  hypothesis  in  the 
other,  whenever  it  suits  his  purpose  to  use  such  knowl 
edge.  Thus,  he  says,  in  relation  to  his  own  Pilgrim 
Fathers: — "Before  their  landing  they  drew  up  and  signed 
a  voluntary  compact  of  government,  forming,  if  not  the 
first,  at  least  the  best  authenticated  case  of  an  original 
social  contract  for  the  establishment  of  a  nation,  which  is 
to  be  found  in  the  annals  of  the  world.  Philosophers  and 
jurists  have  perpetually  resorted  to  the  theory  of  such  a 
compact,  by  which  to  measure  the  rights  and  duties  of 
governments  and  subjects;  but  for  the  most  part  it  has 
been  treated  as  an  effort  of  imagination,  unsustained  by 
the  history  or  practice  of  nations,  and  furnishing  little  of 
solid  instruction  for  the  actual  concerns  of  life.  It  was 
little  dreamed  of,  that  America  should  furnish  an  example 
of  it  in  primitive  and  almost  patriarchal  simplicity."* 
Thus  Massachusetts  has  taken  the  lead  of  all  the  States  in 
the  world  in  the  making  of  social  compacts  and  also  in 
the  Breaking  of  them.  This  last  point  will,  hereafter,  be 
most  fully  illustrated  and  proved. 

The  original  draft  of  the  Constitution  of  Massachusetts 
was  drawn  up  by  John  Adams,  the  second  President  of 
the  United  States,  and  he  certainly  entertained  no  doubt 
that  he  was  drawing  up  an  "explicit  and  solemn  compact," 
or  reducing  the  theory  of  European  writers  to  practice. 
"It  is,"  says  he,  "Locke,  Sidney,  Eousseau,  and  DeMably 
reduced  to  practice. "f  All  these  celebrated  authors  on  the 
"social  contract"  reduced  to  practice!  But  it  is  all  in 

*  u  Story  on  the  Constitution,  Book  i.,  chap,  iii.,  p.  37. 
f  John  Adams's  Works,  Vol.  iv.,  p.  216. 


IS   DAVIS   A   TRAITOR?  45 

vain.  For  if  the  fiction  is  reduced  to  fact  it  is  only  that 
the  fact  may  be  again  reduced  to  fiction.  Massachusetts 
keep  her  bargains!  Even  her  most  gifted  sons,  her  Storys 
and  her  "Websters,  exert  all  their  genius  and  exhaust  the 
stores  of  their  erudition  to  explain  away  and  reduce  to  a 
mere  nullity  her  most  solemn  social  compacts,  both  State 
and  Federal!  The  theory  becomes  a  fact,  and  this  fact 
calls  itself  "an  original,  explicit,  and  solemn  compact." 
But  then,  as  interest  or  power  dictates,  the  fact  is  explained 
away,  and  there  ends  all  the  solemn  farce. 

"Majorities,  in  a  democracy,  do  not  rely  on  Constitu 
tions,  do  not  care  for  Constitutions.  They  rely  on  num 
bers  and  the  strong  arm."  They  spurn,  with  more  than 
imperial  scorn,  the  limitations  and  restraints  which  writ 
ten  Constitutions  or  judicial  decisions  would  impose  on 
their  sovereign  will  and  pleasure.  They  respect  such 
paper  checks,  such  dictates  of  reason  and  justice,  just  about 
as  much  as  the  raging  billows  of  "the  ocean  respected  the 
line  which  Canute  drew  upon  its  shores.  In  the  strong 
language  of  De  Tocqueville,  nothing  can  restrain  them  from 
crushing  whatever  lies  in  their  path.  This  has  been  most 
emphatically  and  pre-eminently  true  of  the  Northern 
majority  in  every  instance  in  which  it  has  gained  the 
ascendency  in  the  grand  Democratic  Eepublic  of  the  New 
World.  Cruel  as  death,  and  inexorable  as  the  grave,  it 
has  moved  right  on  to  its  object,  regardless  of  the  out 
cries  and  "complaints  of  those  whom  it  crushes  upon  its 
path."*  Like  every  other  despotic  power,  it  must,  of 
course,  have  its  sophists,  its  sycophants,  and  flatterers,  to 
persuade  it  that  it  can  never  violate  its  compacts,  because 
it  has  never  made  any  compact  to  be  violated. 

Its  character  is  most  perfectly  described  by  a  great 
Northern  politician  ;  by  one  who,  indeed,  as  a  distinguished 
member  of  the  Convention  «of  1787,  helped  to  frame  the 
Constitution  of  the  United  States.  What,  then,  is  it  in 

*  De  Tocqueville's  "  Democracy  in  America." 


46  IS   DAVIS    A   TRAITOR? 

his  view  ?  Is  it  the  wild  beast  of  Plato  ?  Is  it  "  the  armed 
rhinoceros  or  the  Hyrcan  tiger?"  In  more  respectful  lan 
guage  he  simply  calls  it  "the  legislative  lion ;"  but  yet, 
seeming  to  know  its  nature,  as  Falstaff  knew  the  true 
Prince,  by  instinct,  he  paints  it  beforehand  with  the  pen 
cil  of  a  master.  "But,  after  all,"  says  he,  "what  dees  it 
signify  that  men  should  have  a  written  Constitution,  con 
taining  unequivocal  provisions  and  limitations  ?  The  leg 
islative  lion  will  not  be  entangled  in  the  meshes  ef  a  logi 
cal  net.  Legislation  will  always  make  the  power  which  it 
wishes  to  exercise,  unless  it  be  so  arranged  as  to  contain 
within  itself  the  s-ufficient  check.  Attempts  to  restrain  it 
from  outrage,  by  other  means,  will  only  render  it  the 
more  outrageous.  The  idea  of  binding  legislators  by 
oaths  is  puerile.  Having  sworn  to  exercise  the  powers 
granted,  according  to  their  true  intent  and  meaning,  they 
will,  when  they  feel  a  desire  to  go  further,  avoid  the 
shame,  if  not  the  guilt  of  perjury,  by  swearing  the  true 
intent  and  meaning  to  be,  according  to  their  comprehen 
sion,  that  which  suits  their  purpose."*  Here,  in  one  sen 
tence,  we  have  the  whole  history  of  the  Northern  power 
in  advance;  with  all  its  hypocrisy,  violation  of  oaths,  and 
sovereign  contempt  of  its  most  solemn  compacts  and 
engagements.  Is  it  any  wonder,  then,  that  the  writer 
should  have  looked  forward,  with  such  sad  foreboding,  "to 
the  catastrophe  of  the  tragico-comical  drama,"  f  in  the 
earliest  stages  of  which  he  himself  had  acted  so  conspicu 
ous  a  part? 

*  "  Life  and  Writings  of  Governor  Morris,"  vol.  iii.,  p.  323. 
flbid.,  p.  203. 


CHAPTEE    VIII. 

The  Constitution  of  1787  a  Compact  between  the  States.— The  Facts  of  the  Case. 

IN  discussing  the  question  of  the  preceding  chapters, 
whether  the  Constitution  was  a  Compact,  I  introduced 
much  matter  which  incidentally  showed  that  it  was  a 
compact  between  the  States.  In  like  manner,  I  shall,  in 
proving  that  the  States  are  the  parties  to  the  Constitu 
tion,  produce  much  additional  evidence  that  it  is  a  com 
pact.  In  order  to  show  that  the  States  are  the  parties  to 
the  constitutional  compact,  let  'us  consider — 1.  The  facts 
of  the  case;  2.  The  language  of  the  Constitution  itself; 
and  3.  The  views  of  Hamilton,  Madison,  Morris,  and  other 
framers  of  the  Constitution ;  and  4.  The  absurdities  flow 
ing  from  the  doctrine  that  the  Constitution  is  not  a  com 
pact  between  the  States,  but  was  ordained  by  the* people 
of  America  as  one  nation. 

1.  The  facts  of  the  case.  "It  appears  to  me,"  says  Mr. 
Webster,  "that  the  plainest  account  of  the  establishment 
of  this  government  presents  the  most  just  and  philosophi 
cal  view  of  its  foundation."  True,  very  true.  There  is, 
indeed,  no  proposition  in  the  celebrated  speech  of  Mr. 
Webster,  nor  in  any  other  speech,  more  true  than  this ; 
and  besides,  it  goes  directly  to  the  point.  For  the  great 
question  which  Mr.  Webster  has  undertaken  to  discuss 
relates  not  so  much  to  the  superstructure  of  the  govern 
ment  as  to  "its  foundation." 

This  is  the  question :  How  was  the  Constitution  made 
or  ordained,  and  on  what  does  it  rest?  Bearing  this  in 


48  IS   DAVIS   A   TRAITOR? 

mind,  let  us  proceed  to  consider,  first,  his  plain  account  of 
the  establishment  of  the  government  of  the  United  States, 
and  then  the  arguments  in  favor  of  his  position. 

First,  let  us  consider,  item  by  item,  his  plain  account. 
"The  people  of  the  several  States,"  says  he,  "had  their 
separate  governments,  and  between  the  States  there  also 
existed  a  Confederation."  True.  "With  this  condition 
of  things  the  people  were  not  satisfied,  as  the  Confedera 
tion  had  been  found  not  to  fulfil  its  intended  objects.  It 
was  proposed,  therefore,  to  erect  a  new  common  govern 
ment,  which  should  possess  certain  definite  powers,  such 
as  regarded  the  property  of  the  people  of  all  the  States, 
and  to  be  formed  upon  the  general  model  of  American 
Constitutions."  This  is  not  so  plain.  It  seems  partly 
true  and  partly  false.  "VVe  are  told  that  the  people  had 
discovered  the  defects  of  the  Confederation,  and  were  con 
sequently  not  satisfied  with  it.  Alexander  Hamilton,  a 
contemporary  witness,  tells  a  very  different  story.  "Men 
of  intelligence,"  says  he,  "discovered  the  feebleness  of  the 
structure"  of  the  Confederation;  "but  the  great  body  of 
the  people,  too  much  engrossed  with  their  distresses  to 
contemplate  any  but  the  immediate  causes  of  them,  were 
ignorant  of  the  defects  of  their  Constitution."*  It  was 
only  "when  the  dangers  of  the  war  were  removed,"  and 
the  "men  of  intelligence"  could  be  heard,  that  the  people 
saw  "What  they  had  suffered,  and  what  they  had  yet  to 
suffer  from  a  feeble  form  of  government. "f 

"There  was  no  need  of  discerning  men,"  as  Hamilton 
truly  said,  "to  convince  the  people  of  their  unhappy  con 
dition."  But  they  did  need  to  be  instructed  respecting 
the  causes  of  their  misery.  So  far  was  the  great  body  of 
the  people  from  having  discerned  for  themselves  the  causes 
of  their  troubles  that  Mr.  Madison  ascribes  his  ability  to 
make  this  discovery  to  his  peculiar  situation.  "Having 

*  Works,  vol.  ii.,  p.  445. 
flbid. 


IS   DAVIS    A    TRAITOR?  49 

served  as  a  member  of  Congress,"  says  he,  "through  the 
period  between  March,  1780,  and  the  arrival  of  peace,  in 
1783,  I  had  become  intimately  acquainted  w  th  the  public 
distresses,  and  the  causes  of  them."  Thus  enlightened, 
and,  under  the  dreadful  aspect  of  affairs,  "  sympathizing 
in  the  alarm  of  the  friends  of  free  government  at  the 
threatened  danger  of  an  abortive  result  to  the  great,  and 
perhaps  last,  experiment  in  its  favor,"  Mr.  Madison  could 
not  be  "insensible  to  the  obligation  to  aid  as  far  as  he 
could  in  averting  the  calamity."*  Hence  he  acceded  to 
the  desire  of  his  fellow-citizens  of  the  county,  and  became 
a  member  of  the  legislature  of  Virginia,  "hoping,"  as  he 
declared,  "that  he  might  there  best  contribute  to  incul 
cate  the  critical  posture  to  which  the  revolutionary  cause 
was  reduced,  and  the  merit  of  a  leading  agency  of  the 
state  in  bringing  about  a  rescue  of  the  Union,  and  the 
blessings  of  liberty  staked  on  it,  from  an  impending  catas 
trophe." 

It  thus  appears  that  the  first  step  which,  in  the  end,  led 
to  a  change  of  the  Federal  Government,  was  not  a  popu 
lar  movement;  it  did  not  originate  with  the  people;  it 
sprang  from  the  brain  of  James  Madison,  and  manifested 
itself  in  the  action  of  the  legislature  of  Virginia.  But 
what  was  this  action  ?  Was  it  to  change  the  form  of  the 
Federal  Government  ?  Far  from  it.  -  The  resolution  of  the 
Virginia  legislature,  drawn  up  by  Mr.  Madison,  and  intro 
duced  by  Mr.  Tyler,  f  merely  appoints  commissioners  to 
meet  such  commissioners  as  may  be  appointed  by  the  other 
States,  "  to  take  into  consideration  the  trade  of  the  United 
States,"  and  "to  consider  how  far  a  uniform  system  in 
their  commercial  regulations  may  be  necessary  to  their 

*  Madison  Papers,  p.  693. 

f  The  resolution  was  introduced  by  Mr.  Tyler,  rather  than  its 
author,  because,  "having  never  served  in  Congress,"  he  "had  more 
the  ear  of  the  house  than  those  whose  services  there  exposed  them  to 
an  imputable  bias."  Madison  Papers,  p.  696.  So  great  was  the 
jealousy  of  the  Federal  Congress  in  those  days. 
4 


50  IS    DAVIS    A    TRAITOR? 

common  interest  and  permanent  harmony."  It  suggests 
no  change  whatever  in  the  Federal  government,  except  in 
so  far  as  this  may  be  implied  in  a  uniform  system  of  com 
mercial  regulations. 

This  resolution,  as  every  one  knows,  led  to  the  Annapo 
lis  Convention,  which  took  the  next  great  step  towards  the 
formation  of  the  new  Constitution.  Nor  was  this  a  popu 
lar  movement.  It  originated  in  the  brain  of  Alexander 
Hamilton.  In  the  address  of  that  convention,  he  says, 
"That  the  express  terms  of  the  power  to  your  commis 
sioners  supposing  a  deputation  from  all  the  States,  and 
having  for  its  object  the  trade  and  commerce  of  the  United 
States,  your  commissioners  did  not  conceive  it  advisable  to 
proceed  on  the  business  of  their  mission  under  the  circum 
stances  of  so  partial  and  defective  a  representation."  The 
address  then  proceeds  to  recommend  "  a  general  meeting 
of  the  States  in  a  future  Convention,"  with  powers  extend 
ing  to  "other  objects  than  those  of  commerce."  "They 
are  the  more  naturally  led  to  this  conclusion,"  say  the 
Convention,  "as  in  their  reflections  on  the  subject  they 
have  been  induced  to  think  that  the  power  of  regulating 
trade  is  of  such  comprehensive  extent,  and  will  enter  so 
far  into  the  grand  system  of  the  Federal  government,  that 
to  give  it  efficacy,  and  to  obviate  questions  and  doubts 
concerning  its  precise  nature  and  limits,  may  require  a 
correspondent  adjustment  in  other  parts  of  the  Federal 
system." 

"That  there  are  important  defects  in  the  system  of  the 
Federal  Government,"  continues  the  address,  "is  acknow 
ledged  by  the  acts  of  those  States  which  have  concurred 
in  the  present  meeting.  That  the  defects,  upon  a  closer 
examination,  may  be  found  greater  and  more  numerous 
than  even  these  acts  imply,  is  at  least  so  far  probable, 
from  the  embarrassment  which  characterizes  the  present 
state  of  our  national  affairs,  foreign  and  domestic,  as  may 
reasonably  be  supposed  to  merit  a  deliberate  and  candid 


IS   DAVIS   A   TRAITOR?  51 

discussion,  in  some  mode  which  will  unite  the  sentiments 
and  counsels  of  all  the  States." 

In  compliance  with  this  recommendation  of  "a  general 
meeting  of  the  States  in  a  future  convention,"  twelve 
States  met  at  Philadelphia  on  the  14th  of  May,  1787,  with 
instructions  to  join  "in  devising  and  discussing  all  such 
alterations  and  further  provisions  as  may  be  necessary  to 
render  the  Federal  Constitution  adequate  to  the  exigencies 
of  the  Union."  *  "The  recommendation  was  received  by 
the  legislature  of  Virginia,"  says  Mr.  Madison,  "which 
happened  to  be  the  first  that  acted  on  it,  and  the  example 
of  her  compliance  was  made  as  conciliatory  and  impressive 
as  possible."  f  Thus  it  was  Alexander  Hamilton,  as  the 
master  spirit  of  the  Annapolis  Convention,  who  first  con 
ceived  the  idea  of  a  general  convention  to  revise  and  amend 
the  Federal  Government,  and  it  was  James  Madison,  as 
the  great  ruling  genius  of  the  legislature  of  Virginia,  who 
gave  the  first  and  most  powerful  impulse  to  that  concep 
tion.  The  great  mass  of  the  people  had  very  little  to  do 
with  the  movement. 

"A  resort  to  a  general  convention,"  says  Mr.  Madison, 
"to  remodel  the  Confederacy,  was  not  a  new  idea."  J  He 
then  mentions  five  persons  by  whom  this  idea  had  been 
entertained;  namely,  Pelatiah  Webster,  Colonel  Hamilton, 
E.  H.  Lee,  James  Madison,  and  Noah  Webster.  None  of 
these,  however,  go  beyond  the  idea  of  Hamilton,  "  to 
strengthen  the  Federal  Constitution ;"  or  of  Madison,  to 
supply  its  defects. §  But  if  this  had  been  a  popular  move- 

*  Madison  Papers,  p.  706.  These  are  the  words  of  the  resolution 
of  Virginia  ;  the  instructions  of  the  other  States  were  equivalent  to 
these. 

flbid,  p.  703.  t  Madison  Papers,  706. 

\  The  two  Websters,  Pelatiah  and  Noah,  do  show  some  originality. 
The  one,  in  1781.  seeing  that  Congress  had  not  sufficient  authority 
u  for  the  performance  of  their  duties."  (though  he  does  not  tell  us 
what  duties  they  had  to  perform,  except  to  exercise  the  authority 
entrusted  to  them,)  suggests  the  plan  of  a  Continental  Convention, 
for  the  express  purpose,  "among  other  things,  of  enlarging  the 


52  IS    DAVIS   A   TRAITOR? 

ment,  Mr.  Madison  could  easily  have  found,  during  the 
period  of  three  years,  more  than  five  candidates  for  the 
once  hotly-contested  honor  of  having  conceived  the  first 
idea  of  a  Convention  to  remodel  the  Confederacy  or  to 
amend  the  Federal  Constitution. 

The  plain  truth  is,  that  it  was  Alexander  Hamilton,  and 
not  the  people  who,  grappling  with  the  vast  and  compli 
cated  idea  of  a  regular  commercial  system,  saw  the  changes 
which  such  a  system  must  introduce  into  the  Federal  Gov 
ernment.  Hence  it  was  Alexander  Hamilton,  and  not  the 
people,  who  became  dissatisfied  with  the  Confederation  as 
it  was,  and  sought  to  have  its  Constitution  remodeled. 
"  He  was  the  first,"  as  the  historian  of  the  Constitution 
has  truly  said,  "  to  perceive  and  develop  the  idea  of  a  real 
union  of  the  people  of  the  United  States."  •(" 

It  was  not  proposed  then,  as  Mr.  Webster  alleges,  and 
no  one  ever  proposed,  to  set  aside  the  Confederation  in 
order  to  establish  a  government.  The  Confederation  was 
itself  a  government.  This  contrast  between  the  Confed 
eration  and  a  government,  as  things  essentially  different 
in  kind,  which  pervades  the  whole  of  Mr.  "Webster's  speech, 
and  which  is  even  interwoven  with  his  "  plain  account  of 
the  establishment  of  the  government"  of  the  United  States, 
is  purely  a  hypothesis  of  his  own.  Hamilton  and  the  Con 
vention  of  Annapolis  repeatedly  speak,  as  we  have  seen, 
of  "the  Federal  Constitution"  and  "the  Federal  Govern 
ment."  Madison  and  the  legislature  of  Virginia  use 
precisely  the  same  language  in  reference  to  the  sam'e 
objects.  Even  Pelatiah  Webster,  in  this  respect,  far  less 
original  than  his  great  namesake,  speaks  of  the  "  Consti- 

duties  of  their  Constitution."  The  other,  in  1784.  wished  for  a  Gov 
ernment  "which  should  act,  not  on  States,  but  directly  on  individ 
uals.  If  this  idea  really  originated  with  Noah  Webster,  then  there 
are  many  who  will  think  that  his  political  pamphlet  cancelled  the 
obligations  which  his  spelling  book  conferred  on  the  country.  Mr. 
Webster  was  also  original  in  his  orthography. 

f  "  History  of  the  Constitution  of  the  United  States,"  by  Curtis, 
vol.  i,  p.  413. 


IS    DAVIS   A   TRAITOR?  53 

tution  "  of  the  Federal  Government.  The  Convention  of 
'87,  also  call  the  old  Confederation  "the  Federal  Govern 
ment."* 

But  we  must  proceed  to  the  next  item  of  Mr.  Webster's 
plain  account.  "  This  proposal,"  says  he,  "  was  assented 
to,  and  an  instrument  was  presented  to  the  people  of  the 
several  States  for  their  consideration.  They  approved  it, 
and  agreed  to  adopt  it,  as  a  Constitution."  True,  as  far  as 
it  goes.  But  when  Mr.  Webster  asks,  "  Is  not  this  the 
truth  of  the  whole  matter?"  we  are  bound  to  answer  that 
this  is  either  not  the  truth  of  the  whole  matter,  or  it  is  not 
the  whole  truth  of  the  matter.  On  the  contrary,  it  omits 
precisely  those  great  truths  which  shed  the  most  light  on 
the  foundation  of  the  government  of  the  United  States. 
One  might  well  suppose,  from  the  above  statement,  that 
the  people  of  the  several  States  had  jointly  approved  the 
Constitution,  and  jointly  ordained  it  as  a  Constitution. 
But  however  essential  this  view  may  be  to  the  theory  of 
Mr.  Webster — and  his  theory  is  as  baseless  as  the  fabric  of 
a  vision  without  it — it  has  not  the  shadow  of  a  foundation 
in  the  facts  of  history. 

The  plain  and  unquestionable  fact  is,  that  each  State 
adopted  or  rejected  the  Constitution  for  itself,  and  foT  itself 
alone.  No  twelve  States  could  by  their  united  action  lay  the 
bonds  of  the  new  Constitution  on  the  thirteenth  State.  This 
was  universally  conceded.  The  little  State  of  Rhode  Island 
stood  aloof;  and  though  her  conduct  was  reprobated,  no 
one  denied  her  right.  Neither  all  the  other  States  com 
bined,  nor  all  the  people  of  America,  had  the  shadow  of  an 
authority  to  constrain  her  action,  or  to  control  her  own 
free  ehoice.  No  power  on  earth  could  touch  the  priceless 
pearl  of  her  sovereignty  in  the  affair.  No  one  presumed 
to  question  her  right  to  decide  for  herself.  This  right  was 
then  as  clear  as  the  sun,  and  all  eyes  recognized  it.  And 
this  was  true,  not  only  in  relation  to  Rhode  Island,  but 

*  Madison  Papers,  pp.  730-35,  etc. 


54  IS   DAVIS    A   TRAITOR? 

also  to  each  State  in  the  Confederacy.  For  in  the  act  of 
re-union  each  State  was  perfectly  free  and  independent, 
-uncontrolled  and  uncontrollable  by  any  power  upon  earth. 

But  this  fact,  which  is  far  too  recent  and  too  well 
authenticated  to  be  denied  by  any  one,  goes  to  the  very 
foundation  of  the  government  of  the  United  States,  and 
shows  that  its  Constitution  rested  on  a  federal,  and  not  on 
a  national  act.  It  shows  that  it  was  a  union  of  States, 
effected  by  the  several  act  of  each  State,  and  not  the  union 
of  all  the  individuals  in  America,  acting  as  one  political 
community. 

All  this  was  known  to  Mr.  Webster.  No  man  with  the 
least  political  information  or  reading  could  have  remained 
ignorant  of  it.  But  still  he  glossed  it  over,  or  kept  it  in 
the  far  distant  background,  as  unsuited  to  his  hypothesis 
and  to  the  logic  of  the  Northern  power,  that  the  Constitu 
tion  was  ordained  by  "the  people  of  the  United  States  in 
the  aggregate,"  and  not  by  the  people  of  the  United  States 
in  the  segregate.  And  yet,  after  he  has  given  his  one 
sided,  superficial,  and  unfair  statement,  he  calls  it  "  a  plain 
account,"  and  asks,  "  Now,  sir,  is  not  this  the  truth  of  the 
whole  matter  ?  And  is  not  all  that  we  have  heard  of  a 
compact  between  Sovereign  States  the  mere  effect  of  a 
theoretical  and  artificial  mode  of  reasoning  upon  the  sub 
ject? — a  mode  of  reasoning  which  disregards  plain  facts 
for  the  sake  of  hypothesis  ?  "  Comment  is  unnecessary. 

Mr.  Webster's  "plain  account"  is,  in  fact,  a  gross  falsi 
fication  of  history.  If  possible,  however,  it  is  surpassed 
by  Mr.  Motley.  This  most  unscrupulous  writer  asserts  : 
"The  Constitution  was  not  drawn  up  by  the  States,  it  was 
not  promulgated  in  the  name  of  the  States,  it  was  not  rat 
ified  by  the  States."*  Now  each  and  every  one  of  these 
assertions  is  diametrically  opposed  to  the  truth.  Strike 
out  the  little  syllable  "not"  from  every  clause  of  the  above 
sentence,  and  it  will  then  express  the  exact  truth.  For, 

*  Rebellion  Record,  vol.  1,  p.  211. 


IS    DAVIS    A   TRAITOR?  55 

in  the  first  place,  as  the  record  shows,  it  is  a  plain  and 
incontrovertible  fact,  that  the  Constitution  was  drawn 
up  or  framed  by  the  States. 

It  was  drawn  up  or  framed,  as  every  one  knows,  by  the 
Convention  of  1787 ;  in  which  the  States,  and  the  States 
alone,  were  represented.  Every  iota  of  the  Constitution 
was  decided  upon,  and  found  a  place  in  that  written  instru 
ment,  by  a  vote  of  the  States ;  each  State  having  one  vote ; 
the  little  State  of  Delaware,  for  example,  having  an  equal 
vote  with  New  York,  Pennsylvania,  or  Virginia.  No  fact 
should  be  more  perfectly  notorious,  or  well-known,  than 
this;  for  it  stands  out  everywhere  on  the  very  face  of  the 
proceedings  of  the  Convention,  which  framed  the  Consti 
tution.  Thus,  for  example,  "  On  the  question  for  a  single 
Executive;  it  was  agreed  to, — Massachusetts,  Connecticut, 
Pennsylvania,  Virginia,  North  Carolina,  South  Carolina, 
Georgia,  aye — 7 ;  New  York,  Delaware,  Maryland,  no — 
3."*  In  like  manner,  every  other  item  of  the  Constitution 
was  decided  upon,  and  the  whole  instrument  formed,  by  a 
vote  of  the  States;  acting  as  separate,  independent,  and 
equal  bodies.  How,  in  the  face  of  such  a  fact,  could  Mr. 
Motley  so  boldly  assert,  that  the  Constitution  was  not 
drawn  up,  or  framed,  by  the  States?  By  whom,  then, 
was  it  framed?  Was  it  framed  by  <'the  people  of  the 
"United  States  in  the  aggregate ;"  acting  as  one  nation? 
Nothing  is  farther  from  the  truth.  There  is  not  even  the 
shadow  of  a  foundation  for  any  such  assertion  or  insinua 
tion.  Will  it  be  said,  that  the  Constitution  was  drawn 
up,  not  by  the  States,  but  by  those  who  proposed  its  vari 
ous  articles?  If  so,  such  a  subterfuge  would  be  nothing 
to  the  purpose,  and  very  far  from  deserving  a  moment's 
notice. 

The  second  assertion  of  Mr.  Motley,  that  the  Constitu 
tion  "was  not  promulgated  in  the  name  of  the  States,"  is 
equally  unfortunate.  For,  as  every  one  knows,  it  was 

*  The  Madison  Papers,  p.  783. 


56  IS    DAVIS    A    TRAITOR? 

promulgated  by  the  Congress  of  the  Confederation  in 
which  the  States  alone  were  represented,  and  in  which  all 
the  States  were  perfectly  equal.  The  "  Articles  of  Confed 
eration"  says:  "In  determining  questions  in  the  United 
States,  in  Congress  assembled,  each  State  shall  have  one 
vote"*  It  was  thus  as  equals  that  the  States  voted  in 
determining  to  promulgate  the  new  Constitution;  audit 
was  in  consequence  of  that  action  of  the  States,  that  the 
Constitution  was  promulgated  and  laid  before  the  people 
of  the  several  States  for 'their  adoption.  Here,  again,  in 
direct  opposition  to  the  unblushing  assertion  of  Mr.  Mot 
ley,  the  Constitution  was  promulgated  by  the  States  in 
Congress  assembled.  If  Mr.  Motley  had  only  deigned  to 
glance  at  the  history  of  the  transaction  about  which  he 
speaks  so  confidently,  he  could  not  have  failed  to  perceive, 
that  the  Constitution  was  first  submitted,  by  the  Conven 
tion  of  1787,  "to  the  United  States  in  Congress  assem 
bled  ;"•)•  and  that  it  was  afterwards,  in  conformity  with  the 
opinion  of  the  Convention,  promulgated  by  the  States  "in 
Congress  assembled."  But  Mr.  Motley's  theory  of  the 
Constitution  takes  leave  of  history ;  and  has  little  to  do 
with  facts,  except  to  contradict  them. 

"The  Constitution  was  not  ratified  by  the  States,"  says 
Motley.  In  the  Eesolutions  just  quoted,  and  which  were 
unanimously  adopted  by  the  Convention  of  1787,  we  find 
this  clause:  "Resolved,  That  in  the  opinion  of  this  Con 
vention  that  as  soon  as  the  Convention  of  nine  States 
shall  have  ratified  this  Constitution,  the  United  States 
in  Congress  assembled  should  fix  a  day  on  which  elec 
tors  should  be  appointed  by  the  States  which  shall  have 
ratified  the  same"  &cv  Not  one  of  the  fathers  of  the  Con 
stitution  ever  imagined  that  it  was  not  ratified  by  the 
States.  But  in  this  instance,  as  well  as  in  many  others, 

*Art.  V. 

fResolutions  which,  "by  the  unanimous  order  of  the  Convention" 
of  1787,  was  forwarded  with  the  Constitution  to  Congress. 


IS   DAVIS    A    TRAITOR?  57 

their  most  familiar   idea   is  repudiated,   and  their   most 
explicit  language  is  contradicted,  by  Mr.  Motley. 

In  the  sentence  next  to  the  one  above  quoted  from 
Motley,  he  says:  "  The  States  never  acceded  to  it  [the  Con 
stitution,]  and  possess  no  power  to  secede  from  it."*  This 
peremptory  and  flat  contradiction  of  the  language  of  the 
fathers  of  the  Constitution  deserves  no  further  notice;  since 
it  has  already  been  sufficiently  exposed. 

*  Chapter  III. 


CHAPTEE    IX. 

The  Constitution  a  Compact  between  the  States— The  language  of  the  Constitution. 

2.  The  Language  of  the  Constitution.  "We,  the  people  of 
the  United  States,  in  order  to  form  a  more  perfect  union, 

do  ordain  and  establish  this  Constitution  for  the 

United  States  of  America."  The  first  clause  of  this  pre 
amble  to  the  Constitution,  wholly  detached  from  its  his 
tory  and  from  every  other  portion  of  the  same  instrument, 
as  well  as  from  all  the  contemporary  and  subsequent 
expositions  of  its  authors,  is  made  the  very  corner-stone 
of  the  Northern  theory  of  the  general  government  of  the 
United  States.  That  tremendous  theory,  or  scheme  of 
power,  has  been  erected  on  this  naked,  isolated,  and,  as  we 
expect  to  show,  grossly  misinterpreted  clause. 

From  the  bare  words  of  this  clause  it  is  concluded,  both 
by  Story  and  Webster,  that  the  Constitution  was  estab 
lished  or  ratified,  not  by  a  federal  but  by  a  national  act; 
or,  in  other  terms,  that  it  was  not  ratified  by  the  States, 
but  by  a  power  superior  to  the  States,  that  is,  by  the  sover 
eign  will  of  "the  whole  people  of  the  United  States  in  the 
aggregate,"  acting  as  one  nation  or  political  community. 
With  Puritanical  zeal  they  stick  to  "  the  very  words  of  the 
Constitution,"  while  the  meaning  of  the  words  is  unheeded 
by  them,  either  because  it  is  unknown,  or  because  it  does 
not  suit  their  purpose.  But  words  are  not  the  money, 
they  are  merely  the  counters,  of  wise  men.  The  meaning 
of  the  Constitution  is  the  Constitution. 

In  arriving  at  the  meaning  of  these  words,  of  the  very 


IS    DAVIS    A   TRAITOR?  59 

clause  in  question,  I  shall  not  do  the  least  violence  to  any 
law  of  language,  or  to  any  rule  of  interpretation.  I  shall, 
on  the  contrary,  show  that  we  are  not  "  obliged  to  depart 
from  the  words  of  the  instrument,"  *  as  Mr.  Justice  Story 
alleges,  in  order  to  sustain  our  interpretation  of  any  por 
tion  of  it.  I  shall  show  that  the  Southern  interpretation 
of  the  clause  in  question  is,  in  reality,  the  only  fair,  legiti 
mate  and  reasonable  sense  of  the  preamble  itself.  Nor 
shall  I,  for  this  purpose,  repeat  the  arguments  which  are 
usually  employed  by  the  friends  of  the  South  in  this  con 
troversy.  Those  arguments  are  amply  sufficient  to  refute 
the  interpretation  of  Story  and  Webster.  But  they  are  so 
well  put  by  others — by  John  Taylor,  of  Caroline  ;  by 
Judge  Upsher,  of  Virginia ;  by  John  C.  Calhoun,  of  South 
Carolina  ;  and  especially  by  Mr.  Spence,  of  Liverpool,  that 
I  need  not  repeat  them  here.  Every  one  may  find  access 
to  them  in  the  admirable  work  of  Mr.  Spence. f  Hence, 
passing  by  those  arguments,  I  «hall,  by  an  appeal  to  the 
records  of  the  Convention  of  1787,  make  my  position  good, 
and  annihilate  the  great  corner-stone  of  the  -Northern  the 
ory  of  the  Constitution  of  the  United  States. 

"We,  the  people  of  the  United  States."  The  history 
of  these  words  is  curious  and  instructive.  Only  a  portion 
of  that  history  has,  as  yet,  been  laid  before  the  public  of 
England  or  of  the  United  States.  In  the  light  of  that 
history  the  great  corner-stone  in  question  will  be  found  to 
crumble  into  dust  and  ashes  ;  and  the  only  wonder  will  be, 
that  considerations  so  clear  and  so  conclusive  should  have 
been  so  long  locked  up,  as  a  profound  secret,  in  the  records 
of  the  very  Convention  that  formed  the  Constitution  of  the 
United  States. 

It  is  well  known  that  in  the  original  draft  of  the  Con 
stitution,  its  preamble,  instead  of  saying,  "  We,  the  people 

"  Commentaries  on  the  Constitution,"  Book  iii.,  chap.  ii. 
f  We  have  only  said  admirable  ;    but,  all  things  considered,  Mr. 
Spence' s  work  is  truly  a  wonderful  production. 


60  IS   DAVIS   A   TRAITOR? 

of  the  United  States,"  specified  each  State  by  name,  as 
the  previous  Articles  of  Confederation  had  done.  If  it 
had  remained  thus,  then  the  States  would  have  appeared, 
on  the  very  face  of  the  preamble  itself,  as  the  parties  to 
the  Constitution.  But  the  preamble,  as  is  well  known,  was 
afterwards  changed,  by  omitting  to  mention  the  States  by 
name.  There  are,  however,  some  most  important  facts 
connected  with  the  change  and  the  origin  of  the  words  in 
question,  which  seem  to  be  wholly  unknown  on  both  sides 
of  the  Atlantic.  They  have,  certainly,  attracted  no  notice 
whatever  from  any  of  the  writers  on  the  great  controversy 
between  the  North  and  the  South. 

The  first  of  these  facts  relates  to  the  person  by  whom, 
and  the  manner  in  which,  the  change  in  question  was 
effected ;  or,  the  words,  "  We,  the  people  of  the  United 
States,"  were  substituted  for  an  enumeration  of  the  States 
by  name.  During  all  the  great  discussions  of  the  Con 
vention,  the  preamble  to  the  Constitution  retained  its  orig 
inal  form ;  nor  was  there,  from  the  beginning  to  the  end 
of  their  deliberations,  a  single  whisper  of  dissatisfaction 
with  it  in  that  form.  Every  member  of  the  Convention 
appeared  perfectly  satisfied  that  the  States  should  stand, 
on  the  very  front  of  the  Constitution,  as  the  parties  to  the 
compact  into  which  they  were  about  to  enter.  It  was 
only  after  the  provisions  of  the  Constitution  were  agreed 
upon,  and  its  language  was  referred  to  "  a  committee  on 
style,"  that  the  names  of  the  States  were  silently  omitted, 
and  the  clause,  "  We,  the  people  of  the  United  States," 
substituted  in  their  place.  Now,  it  will  not  be  denied,  that 
if  this  change  had  not  been  made  by  the  "  committee  on 
style,"  then  the  States  would  have  been  the  parties  to  the 
new  Constitution  just  as  they  had  been  to  the  old  Articles 
of  Confederation.  Hence,  if  the  interpretation  of  Story 
and  Webster  be  the  true  one,  then  it  must  be  admitted 
that  the  "  committee  on  style,"  appointed  merely  to  express 
the  views  of  the  Convention,  really  transformed  the  nature 


IS   DAVIS    A   TRAITOR?  61 

of  the  Constitution  of  the  United  States!  Then  it  must 
be  admitted,  that  the  "  committee  011  style,"  by  a  single 
turn  of  its  pen,  changed  the  course  of  history  and  the 
meaning  of  its  facts ;  causing  the  supreme  power  of  the 
Federal  Government  to  emanate,  not  from  the  States,  but 
from  the  people  of  America  as  one  political  community ! 
Did  the  "  committee  on  style  "  do  all  this  ?  And  is  it  on 
legislation  like  this  that  a  sovereign  State  is  to  be  deemed 
guilty  of  treason  and  rebellion  against  the  sublime  author 
ity  of  the  people  of  America,  and  visited  with  the  utmost 
vengeance  of  that  malign  power  ?  The  sublime  authority 
of  the  people  of  America,  the  one  grand  nation,  erected 
and  established  solely  by  the  pen  of  the  "  committee  on 
style  "! 

This  clause,  "  We,  the  people  of  the  United  States," 
introduced  by  the  "committee  on  style,"  and  passed  over 
in  perfect  silence  by  the  whole  Convention,  is  the  great 
stronghold,  if  it  has  one,  of  the  Northern  theory  of  the 
Constitution.  The  argument  from  these  words  appears  in 
every  speech,  book,  pamphlet,  and  discussion  by  every 
advocate  of  the  North.  It  was  wielded  by  Mr.  "Webster 
in  his  great  debate  with  Mr.  Calhoun,  in  1833,  and  still 
more  fully  in  his  still  more  eloquent  speech  on  Foote's 
resolutions  in  1830.  "  The  Constitution  itself,"  says  he, 
in  its  very  front,  declares  that  it  was  ordained  and  estab 
lished  by  the  people  of  the  United  States  in  the  aggre 
gate."  The  fact  is  not  so.  The  Constitution  neither 
declares  that  it  was  established  by  the  people  of  the  Uni 
ted  States  in  the  aggregate,  nor  by  the  people  of  the  United 
States  in  the  segregate.  But  if  we  look  into  the  history  of 
the  transaction,  we  shall  find  that  it  was  established  by  them 
in  the  latter  character,  and  not  in  the  former.  We  shall 
find  that  each  State  acted  separately,  and  for  itself  alone ; 
and  that  no  one  pretended,  or  imagined,  that  the  whole 
aggregate  vote  of  any  twelve  States  could  bind  the  thir 
teenth  State,  without  its  own  individual  consent  and  rati- 


62  IS    DAVIS    A    TRAITOR? 

fication.  In  order  to  make  out  his  interpretation,  Mr. 
Webster  interpolates  the  legislation  of  the  "  committee  on 
style  "  with  words  of  his  own. 

The  change  in  the  preamble  to  the  Constitution  was 
effected  by  the  pen  of  Governor  Morris,  one  of  the  most 
zealous  advocates  in  the  Convention  of  1787,  for  a  strong 
national  Government.  He  certainly  wished  all  power  to 
emanate  from  the  people  of  America,  and  to  have  them 
regarded  as  one  great  nation.  But  did  be  accomplish  his 
wish  ?  In  the  Convention,  says  the  record,  "  Governor 
Morris  moved  that  the  reference  of  the  plan  (L  e.j  of  the 
Constitution)  be  made  to  one  General  Convention,  chosen 
and  authorized  by  tne  people,  to  consider,  amend,  and 
establish  the  same."*  This  motion,  if  adopted,  would 
indeed  have  caused  the  Constitution  to  be  ratified  by  "the 
people  of  the  United  States  in  the  aggregate,"  or  as  one 
nation.  This  would,  in  fact,  have  made  it  a  Government 
emanating  from  the  people  of  America  in  one  General 
Convention  assembled  and  not  from  the  States.  Eut  how 
was  this  motion  received  by  the  Convention?  Was  it 
approved  and  passed  in  the  affirmative  by  that  body  ?  It 
did  not  even  find  a  second  in  the  Convention  of  1787.  So 
says  the  record*,  and  this  is  a  most  significant  fact.  So 
completely  was  such  a  mode  of  ratification  deemed  out  of 
the  question  that  it  found  not  the  symptom  or  shadow  of 
support  from  the  authors  of  the  Constitution  of  the  United 
States. 

Now  was  the  very  object,  which  Governor  Morris  so 
signally  failed  to  accomplish  directly  and  openly  by  his 
motion,  indirectly  and  covertly  effected  by  his  style?  And 
if  so,  did  he  design  to  effect  such  a  change  in  the  funda 
mental  law  of  the  United  States  of  America?  It  is  cer 
tain  that  precisely  the  same  effect  is  given  to  his  words, 
to  his  style,  as  would  have  resulted  from  the  passage  of 
his  motion  by  the  Convention.  Did  Governor  Morris 

*  "  The  Madison  Papers,"  p.  1184. 


IS    DAVIS    A    TRAITOR?  63 

then  intend  that  his  words  should  have  such  force  and 
effect?  In  supposing  him  capable  of  such  a  fraud  on  the 
Convention  of  1787,  I  certainly  do  him  no  injustice,  since 
we  have  his  own  confession  that  he  actually  perpetrated 
several  such  frauds  on  that  assembly  of  Constitution- 
makers.  "That  instrument,"  says  he  in  reference  to 
the  Constitution,  "was  written  by  the  fingers  which 
writes  this  letter.  Having  rejected  redundant  terms, 
I  believed  it  to  be  as  clear  as  language  would  permit; 
excepting,  nevertheless,  a  part  of  what  relates  to  the 
judiciary.  On  that  subject  conflicting  opinions  had  been 
maintained  with  so  much  professional  astuteness,  that  it 
became  necessary  to  select  phrases,  which  expressing  my 
own  notions  would  not  alarm  others,  nor  shock  their  self- 
love;  and  to  the  best  of  my  recollection  this  was  the  only 
part  which  passed  without  cavil."*  How  adroitly,  then, 
how  cunningly,  he  cheats  the  Convention  into  the  uncon 
scious  sanction  of  his  "  own  notions ;"  and  this  great 
legislator  of  the  North,  even  in  the  purer  days  of  the 
infant  republic,  was  proud  of  the  fraud ! 

Nor  is  this  the  only  instance  in  which,  according  to  his 
own  confession  and  boast,  Governor  Morris  tricked  the 
Convention  into  the  adoption  of  his  own  private  views. 
"I  always  thought,"  says  he,  in  another  letter,  "that 
when  we  should  acquire  Canada  and  Louisiana,  it  would 
be  proper  to  govern  them  as  provinces,  and  allow  them  no 
voice  in  our  councils.  In  wording  the  third  section  of  the 
fourth  article  I  went  as  far  as  circumstances  would  permit 
to  establish  the  exclusion.  Candor  obliges  me  to  add  my 
belief  that,  had  it  been  more  pointedly  expressed,  a  strong 
opposition  would  have  been  made."f  Thus,  as  the  penman 
of  the  committee  on  style,  he  abused  his  high  position,  not 
only  to  mould  the  judiciary  system  of  the  United  States  to 
suit  his  "  own  notions,"  but  also  to  determine  the  fate  of 

*  "  Life  and  Writings  of  Governor  Morris,"  vol.  iii.,  p.  323. 
flbid,  vol.  iii.,  p.  193. 


64  IS   DAVIS    A   TRAITOR? 

two  vast  empires!  Is  not  such  legislation  truly  won 
derful  ?  Instead  of  weighing  every  word  with  the  utmost 
care,  and  then  depositing  it  in  the  Constitution  as  under  the 
solemn  sanction  of  an  oath,  the  Convention  trusts  the  style 
of  the  instrument  to  a  fine  writer,  who  cunningly  gives 
expression  to  his  own  views  in  opposition  to  those  of  the 
assembly!  "In  a  play,  or  a  moral,"  says  Jeremy  Ben- 
tham,  "an  improper  word  is  but  a  word;  and  the  impro 
priety,  whether  noted  or  not,  is  attended  with  no  conse 
quences.  In  a  body  of  laws — especially  of  laws  given  as 
Constitutional  ones— an  improper  word  would  be  a  national 
calamity,  and  civil  war  may  be  the  consequences  of  it. 
Out  of  one  foolish  word  may  start  a  thousand  daggers." 
How  true,  and  how  fearfully  has  this  truth  been  illustrated 
by  the  history  of  the  United  States ! 

But  although  Governor  Morris  was  capable  of  such  a 
fraud  on  the  Convention,  we  have  no  good  reason  to 
believe  he  intended  one,  by  the  substitution  of  the  words, 
"We,  the  people  of  the  United  States,"  for  the  enumera 
tion  of  all  the  States  by  name.  He  has  nowhere  confessed 
to  any  such  thing ;  and  besides  he  did  not  understand  his 
own  words  as  they  are  so  confidently  understood  by  Story 
and  Webster.  Every  rational  inquirer  after  truth  should, 
it  seems  to  me,  be  curious  to  know  what  sense  Governor 
Morris  attached  to  the  words  in  question,  since  it  wras  by 
his  pen  that  they  were  introduced  into  the  preamble  of 
the  Constitution.  Nor  will  such  curiosity  be  diminished, 
but  rather  increased,  by  the  fact  that  he  did,  in  some 
cases,  aim  to  foist  his  own  private  views  into  the  Consti 
tution  of  his  country.  How,  then,  did  Governor  Morris 
understand  the  words,  "  We,  the  people  of  the  United 
States  "?  Did  he  infer  from  these  words  that  the  Consti 
tution  was  not  a  compact  between  States,  or  that  it  was 
established  by  the  people  of  America,  and  not  by  the  States  ? 
I  answer  this  question  in  the  words  of  Governor  Morris 
himself.  "The  Constitution,"  says  he,  "was  a  compact, 


IS    DAVIS    A    TRAITOR?  65 

not  between  individuals,  but  between  political  societies, 
the  people,  not  of  America,  but  of  the  United  States,  each 
enjoying  sovereign  power  and  of  course  equal  rights.'"1 
Language  could  not  possibly  be  more  explicit.  Nor  could 
it  be  more  evident  than  it  is,  that  Govenor  Morris,  the  , 
very  author  of  the  words  in  question,  entertained  pre 
cisely  the  same  view  of  their  meaning  as  that  maintained 
by  Mr.  Calhoim  and  his  school.  This  point  was,  indeed, 
made  far  too  clear  by  the  proceedings  of  the  Convention 
of  1787  for  any  member  of  that  body  to  entertain  the 
shadow  of  a  doubt  in  relation  to  it.  Nor  can  any  one 
read  these  proceedings  as  they  deserve  to  be  read,  without 
agreeing  with  Governor  Morris,  that  the  authors  of  the 
Constitution  designed  it  to  be  ratified,  as  in  fact  it  was,  by 
"the  people  of  the  United  States,"  not  as  individuals,  but 
as  "political  societies,  each  enjoying  sovereign  power,  and 
of  course  equal  rights."  Or,  in  other  words,  without 
seeing  that  "the  Constitution  was  a  compact,"  not  between 
individuals,  "but  between  political  societies,"  between 
sovereign  States.  This,  in  the  next  chapter,  I  hope  and 
expect  to  make  perfectly  clear,  by  bringing  to  view  the 
origin  of  the  words  "We,  the  people,"  and  by  showing 
the  sense  in  which  they  were  universally  understood  and 
used  by  the  members  of  the  Convention  of  1787  in  the 
very  act.  of  framing  the  Constitution  of  the  United  States. 

*"Life  and  Writings,"  vol.  in.,  p.  193. 


CHAPTEE    X. 

The  Constitution  of  1787  a  Compact  between  the  States,     The  Language  of  the 
Constitution. 

THE  Convention  of  1787  did,  as  we  have  seen,  refuse  to 
call  the  government  a  national  one,  and  gave  it  the  name 
of  "the  government  of  the  United  States."  Did  they 
then  make  it  a  national  one  by  enacting  that  it  should  be 
ordained  by  "the  whole  people  of  the  United  Staters  in 
the  aggregate "  as  one  political  society?  Again,  when  it 
was  proposed  in  the  Convention  to  ordain  the  Constitution 
by  "the  people  of  the  United  States  in  the  aggre 
gate,"  in  one  general  Convention  assembled,  the  motion 
failed,  as  we  have  seen,  to  secure  a  second.  Did  Gov 
ernor  Morris,  then,  the  author  of  that  proposal,  achieve 
by  his  style  what  he  failed  to  accomplish  by  his  motion? 
If  so,  what  should  we  think  of  the  incompetency  of  the 
Convention? 

Nor  was  this  all.  For  Madison  introduced  a  motion 
which  required  "a  concurrence  of  a  majority  of  both  the 
Stales  and  the  people"*  at  large  to  establish  the  Constitu 
tion;  and  this  proposition  was  rejected  by  the  Conven 
tion.  All  these  motions,  designed  to  connect  the  new 
government  with  a  national  origin,  were  lost,  .and  the 
decree  went  forth  that  the  Constitution  should  be  estab 
lished  by  the  accession  of  nine  States,  each  acting  for 
itself  alone,  and  to  be  bound  only  by  its  own  voluntary 
act.  ISTow,  the  question  is,  was  all  this  action  of  the  Con 
vention  overruled  and  defeated  by  the  committee  on  style, 

*"The  Madison  Papers,"  p.  1470. 


IS    DAVIS    A    TRAITOR?  67 

or  rather  by  its  penman,  Gouverneur  Morris?  If  he  formed 
such  design,  then  it  must  be  admitted  that  the  Northern 
theory  of  the  Constitution  was  conceived  in.  fraud  and 
brought  forth  in  iniquity;  and  every  honest  man  at  the 
North  ought  to  be  ashamed  both  of  its  origin  and  its  exist 
ence.  But,  as  we  have  already  seen,  Governor  Morris  did 
not  understand  his  own  words,  "We,  the  people,"  as  they 
are  understood  by  the  more  modern  expounders  of  the 
Constitution  at  the  North.  Hence  we  have  no  reason  to 
believe  that  he  intended,  in  this  case  at  least,  a  fraud  on 
the  design  and  will  of  the  Convention. 

Was  the  whole  thing  done  then,  and  the  nature  of  the 
Constitution  transformed,  by  a  slip  of  the  pen,  or  by  acci 
dent?  After  all  their  opposition  both  to  the  name  and  to 
the  thing  did  the  Convention,  by  sheer  oversight,  blunder 
into  the  construction  of  a  purely  national  government,  by 
permitting  it  to  be  established  by  the  people  of  America 
as  one  grand  political  community?  If  Mr.  Justice  Story's 
view  of  the  words,  "We,  the  people  of  the  "United  States," 
be  correct,  how  did  it  happen  that  the  opponents  of  such 
a  mode  of  ratification  said  absolutely  nothing?  The  whole 
instrument,  as  amended  by  the  committee  on  style,  was 
read  in  the  hearing  of  the  Convention,  beginning  with  the 
preamble,  and  yet  the  words,  "  We,  the  people  of  the 
United  States,"  now  deemed  so  formidable  to  the  advocates 
of  State  sovereignty,  did  not  raise  a  single  whisper  of 
opposition.  How  could  this  have  happened  if  the  words 
in  question  were  supposed  to  mean  the  people  of  America, 
or  the  whole  people  of  the  United  States  as  one  political 
society?  Were  Mason,  and  Martin,  and  Paterson,  and  Ells 
worth,  all  too  dull  to  perceive  that  meaning,  which  is  so 
perfectly  obvious  to  Mr.  Justice  Story,  and  which  he 
imagines  that  nothing  but  the  most  purblind  obstinacy  can 
resist?  Were  all  the  friends  of  the  States,  as  independent 
sovereignties,  asleep  on  their  posts  while  Gouverneur  Mor 
ris  thus  transformed  the  nature  of  the  Constitution,  with- 


68  IS    DAVIS   A    TRAITOR? 

out  knowing  it  himself,  by  causing  it  to  emanate,  not  from 
the  States,  but  from  the  people  of  America  as  one  nation? 
No.  Not  one  of  these  suppositions  is  the  true  one.  The 
whole  mystery  is  explained  in  the  proceedings  of  the  Con 
vention  of  1787,  as  exhibited  in  "The  Madison  Papers;" 
an  explanation  which,  however,  has  hitherto  been  most 
unaccountably  overlooked.  "We  may  there  find  the  real 
meaning  of  the  wrords  in  question,  and  see  why  they  gave 
no  alarm  to  the  advocates  of  State  sovereignty. 

If  we  cast  our  eyes  all  along  the  subject  of  "the  mode 
of  ratification,"  ranging  from  page  735  to  page  1632  of 
"The  Madison  Papers,"  we  shall  perceive  that  the  ques 
tion,  whether  the  Constitution  should  be  ratified  by  the 
people  of  "the  United  States  in  the  aggregate,"  or  by  the 
several  States,  was  not  considered  by  the  Convention  at 
all.  No  such  question  wras  before  the  Convention.  It  was 
neither  mooted  nor  considered  by  them.  The  error  of 
Story  and  "Webster  is,  that  they  construe  the  first  clause 
of  the  Constitution  as  if  it  referred  to  one  question; 
whereas,  in  fact,  it  referred  to  quite  another  and  a  far  dif 
ferent  question — that  is,  they  construed  this  clause  in  pro 
found  darkness  as  to  the  origin  of  its  words,  as  well  as  to 
their  use  and  application  in  the  Convention  of  1787.  If 
they  had  understood  them  as  actually  and  uniformly  used 
or  applied  by  the  framers  of  the  Constitution,  then  they 
could  neither  have  deceived  themselves  nor  the  people  of 
the  North.  If,  indeed,  they  had  been  members  of  that 
Convention,  or  had  only  examined  its  proceedings,  they 
would  have  seen  why  the  staunch  advocates  of  State  sov- 
cignty  raised  not  even  the  slightest  whisper  of  opposition 
to  the  words,  "We,  the  people."  Or,  if  Patrick  Henry 
had  been  a  member  of  that  assembly,  then  he  could  not 
have  exclaimed,  as  he  did,  "Why  say  We,  the  people,  and 
not  We,  the  States?" — an  exclamation  so  often  quoted  by 
Story,  Webster,  and  the  whole  Northern  school  of  politi 
cians  as  a  conclusive  authority — for  then  he  would  have 


IS    DAVIS    A   TRAITOR?  69 

seen  that  "We,  the  people,"  in  the  language  of  the  framers 
of  the  Constitution,  meant  precisely  the  same  thing  as 
"We,  the  States,"  and  neither  more  nor  less. 

The  question  before  the  Convention  was,  whether  the 
Constitution  should  be  ratified  by  the  legislatures  or  by 
the  sovereign  peoples  of  the  several  States.  No  one 
doubted  that  it  was  to  be  ratified  by  the  States.  This,  as 
we  shall  see,  was  on  all  hands  regarded  as  a  settled  point. 
The  only  question  was,  whether  it  should  be  ratified  by 
the  States,  acting  through  their  legislatures,  or  through 
Conventions  elected  to  represent  the  people  for  that  spe 
cial  purpose.  In  the  discussion  of  this  question,  most  of 
the  members  insisted  that  the  Constitution  should  be  rati 
fied  by  the  people,  by  the  States  in  their  sovereign  capa 
city,  or  by  their  Conventions.  These  several  modes  of 
expression  were,  in  the  vocabulary  of  the  Convention, 
used  as  convertible  terms,  as  perfectly  synonymous  with 
each  other.  Hence  the  phrase,  "the  people  of  the  United 
States,"  as  used  and  understood  by  them,  meant  the  peo 
ple  of  the  several  States  as  contradistinguished  from  their 
legislatures,  and  not  the  people  of  America  as  contradis 
tinguished  from  the  distinct  and  separate  sovereign  peo 
ples  of  the  different  States.  This  application  of  the  words 
is  the  invention  of  theorists  merely.  It  was  unknown  to 
the  Convention  of  1787,  and  has  had  no  existence  except 
in  the  imaginations  of  those  by  whom  their  labors  have 
been  systematically  misconstrued  and  perverted  from  their 
original  design. 

Some  few  members  of  the  Convention  were  in  favor  of 
leaving  "the  States  to  choose  their  own  mode  of  ratifica 
tion  ;"  but  the  great  majority  of  them  insisted  that  the  Con 
stitution  should  be  referred  to  the  States  for  ratification, 
either  through  their  legislatures  or  through  their  people 
in  Conventions  assembled.  It  was  in  regard  to  these  two 
methods  that  the  Convention  was  divided.  All  agreed 
that  it  should  be  done  by  "the  States,"  and  the  only  ques- 


70  IS    DAVIS    A   TRAITOR? 

tion  was  as  to  how  "the  States"  should  do  it.  The  idea 
that  it  was  designed  to  be  done,  or  that  it  was  done,  by 
the  people  of  America  as  one  nation,  is  the  dream  of  a 
later  day,  and,  as  we  shall  see,  is  nothing  but  a  dream. 

Some  insisted  that  it  should  be  ratified  by  the  States  in 
their  corporate  capacity — that  is,  by  their  legislatures; 
and  others  that  it  should  be  ratified  by  the  States  in  their 
sovereign  political  capacity — that  is,  by  their  Conventions 
assembled  for  that  express  purpose.  Or,  in  other  words, 
some  contended  that  it  ought  to  be  ratified  by  their  general 
agents,  the  legislatures;  and  others  that  it  ought  to  be 
ratified  by  their  special  agents,  the  Conventions  elected 
and  assembled  to  perform  that  high  act  of  sovereign 
power.  In  both  cases,  it  was  to  be  ratified  by  the  States, 
but  the  opposite  parties  preferred  different  modes  of  rati 
fication  by  them. 

In  debating  this  question,  as  to  the  mode  of  ratification 
by  the  States  (the  only  one  before  the  Convention),  some 
of  the  most  inflexible  advocates  of  State  sovereignty 
insisted  that  it  should  be  ratified  by  "the  people  of  the 
United  States/'  But  then  they  understood  this  language, 
and  every  member  of  the  Convention  understood  it  to 
mean  the  peoples  of  the  several  States,  as  distinguished 
from  their  legislatures.  If,  for  one  moment,  they  had 
imagined  that  their  language  could  have  been  construed 
to  mean  a  ratification  of  the  Constitution  by  the  collec 
tive  will  of  the  whole  people  of  America,  they  would  have 
shrunk  from  its  use  with  horror ;  for  they  dreaded  noth 
ing  more  than  the  idea  of  such  an  immense  consolidated 
democracy.  On  the  contrary,  they  clung  to  the  States, 
and  to  their  rights,  as  the  only  sheet-anchor  of  safety 
against  the  overwhelming  and  all-devouring  floods  of 
such  a  national  union  of  mere  numbers  or  individuals. 
George  Mason,  no  less  than  Patrick  Henry,  would  have 
exclaimed  against  the  words,  "We,  the  people,"  if,  as  a 
member  of  the  Convention  of  1787,  he  had  not  learned 
that  they  only  meant  "We,  the  States." 


IS    DAVIS    A   TRAITOR?  71 

In  discussing  the  question  as  to  the  mode  of  ratification 
by  "the  States,"  Mr.  Mason  said  "he  considered  a  refer 
ence  of  the  plan  to  the  authority  of  the  people  as  one  of 
the  most  important  and  essential  of  the  resolutions.  "The 

legislatures  have  no  power  to  ratify  it Another 

strong  reason  (said  he)  was  that  admitting  the  legislatures 
to  have  a  competent  authority  it  would  be  wrong  to  refer 
the  plan  to  them',  because  succeeding  legislatures,  having 
equal  authority,  could  undo  the  acts  of  their  predeces 
sors."*  This  argument  was  repeatedly  urged  by  other 
members ;  and  it  was  insisted  that  if  the  Constitution 
should  be  ratified  by  the  legislatures  of  the  States,  instead 
of  by  the  people  of  the  States,  it  would  rest  upon  a  weak 
and  tottering  foundation,  since  the  legislatures  wrhich  had 
established  might  claim  the  power  to  repeal. 

In  like  manner  Mr.  Madison  said,  "For  these  reasons,  as 
well  as  for  others,  he  thought  it  indispensable  that  the 
new  Constitution  should  be  ratified  in  the  unexceptiona 
ble  form,  and  by  the  supreme  authority  of  the  people 
themselves"f — that  is,  as  the  context  shows,  by  the 
supreme  authority  of  the  people  of  the  several  States  in 
opposition  to  their  "legislative  sanction  only."  Not  one 
word  was  ever  said  during  the  whole  of  the  debate  about 
referring  the  Constitution  to  the  people  of  the  whole 
country  in  the  aggregate  for  ratification.  This  idea  had 
not  then  risen  above  the  horizon  of  the  political  world, 
though  it  afterwards  became  the  great  political  sun  of 
the  Northern  section  of  the  Union. 

Those  who  advocated  the  mode  of  ratification  by  the 
people,  or  by  the  Conventions  of  the  States  elected  for  that 
purpose,  prevailed  over  those  who  urged  the  ratification 
by  the  legislatures.  The  majority  favored  the  mode  of 
ratification  by  the  people  or  the  Conventions.  Accord 
ingly,  when  the  committee  of  detail  reported  a  draft  of 

*"  Madison  Papers,"  p.  1177. 
flbid,  p.  796. 


72  IS   DAYIS   A   TRAITOR? 

the  Constitution,    we   find   these   words — "Article   XXI. 

The  ratifications  of  the  Conventions  of States  shall 

be  sufficient  for  the  organization  of  this  Constitution."* 
Thus  it  came  to  be  perfectly  understood  that  it  should  be 
ratified  by  the  Conventions  or  the  peoples  of  the  several 
States,  and  not  by  their  legislatures. 

But  here  the  question  arose,  if  the  blank  for  the  number 
of  States  should  be  filled  with  "seven,"  "eight,"  or  "nine." 
The  Constitution,  as  it  stood,  might,  in  the  opinion  of  Mr. 
Madison,  be  put  in  force  over  "  the  whole  body  of  the  peo 
ple,  though  less  than  a  majority  of  them  should  ratify  it." 
But,  in  th'e  opinion  of  Mr.  Wilson,  "As  the  Constitution 
stands,  the  States  only  wThich  ratify  can  be  bound."  f  In 
order  to  remove  this  difficulty,  and  settle  the  question, 
Mr.  King  moved  to  add,  at  the  end  of  Article  XXI,  the 
words  "between  the  said  States,  so  as  to  confine  the  opera 
tion  of  the  government  to  the  States  ratifying  the  same."! 
Thus  it  was  Rufus  King,  at  first  one  of  the  most  strenuous 
advocates  in  the  Convention  of  1787  for  a  strong  national 
government,  who  introduced  the  words  by  which  the  Con 
stitution  was  made  binding  "between  the  States  so  ratify 
ing  the  same."  These  words  proved  acceptable  to  Madi 
son  and  Wilson,  though  both  were  among  the  most  zeal 
ous  advocates  of  a  strong  general  government  in  the  Con 
vention  of  1787,  and  they  became  a  part  of  the  new  Con 
stitution.  Thus  it  was  universally  understood  by  the 
Convention,  and  so  expressed,  that  the  new  Constitution 
was  to  be  established  "by  the  ratification  of  the  Conven 
tions  of States,"  and  to  be  binding  only  "between 

the  States  so  ratifying  the  same." 

During  all  this  time  the  name  of  each  State  still  retained 
its  place  in  the  preamble  to  the  Constitution,  in  which  the 
committee  of  detail  made  no  change ;  and  if  the  party, 
with  Gerry  and  Hamilton  at  their  head,  who  wished  to  fill 

*  Madison  Papers,  p.  1241.     f  Ibid,  p.  1469.     J  Ibid,  p.  1470. 


IS   DAVIS    A   TRAITOR?  73 

the  blank  with  the  whole  thirteen  States,  had  prevailed,  we\ 
have  no  reason  to  believe  that  aijy  alteration  would  in  this 
respect  have  been  made  in  the  preamble  to  the  Constitution.; 
But  when,  after  debate,  the  blank  was  filled  with  "  nine,"  it? 
became  impossible  to  specify  the  States  between  whom  the* 
new  Constitution  might  be  established  or  the  new  gov 
ernment  organized.  Hence  it  became  proper,  if  not  neces 
sary,  to  drop  the  specifiation  of  the  States  by  name — a 
change  which,  as  we  have  seen,  was  first  introduced  by 
the  committee  on  style,  and  read  to  the  Convention  with 
out  raising  the  slightest  objection  or  murmur. 

"VVe  are  now  prepared  to  see,  as  in  the  clear  light  of 
noon-day,  why  the  words,  "We,  the  people  of  the  United 
States,"  which  have  since  made  so  much  noise  in  the 
political  world,  did  not  make  any  whatever  in  the  Con 
vention  of  1787.  "Why  should  George  Mason,  or  any  other 
adherent  of  State  sovereignty,  object  to  the  words  intro 
duced  by  the  committee  on  style?  They  merely  expressed 
the  very  thing  for  which  he  had  contended,  and  which  had 
been  fully  expressed  in  the  seventh  Article  of  the  new 
Constitution.  For  when  it  was  determined  that  the  Con 
stitution  should  be  ratified  by  "  the  Conventions  of  the 
States,"  and  not  by  the  legislatures,  this  was  exactly 
equivalent,  in  the  uniform  language  of  the  Convention  of 
1787,  to  saying  that  it  shall  be  ratified  by  "  the  people  of 
the  States."  Hence,  the  most  ai  dent  friend  of  State  rights, 
or  State  sovereignty,  saw  no  reason  why  he  should  object 
to  the  words,  "  We,  the  people  of  the  United  States," 
because  he  knew  they  were  only  intended  to  express  the 
mode  of  ratification  by  the  States  for  which  he  had  con 
tended — that  is,  by  the  States  in  their  sovereign  capacity, 
as  so  many  political  societies  or  peoples,  as  distinguished 
from  their  legislatures. 


CHAPTEE   XI. 

The  Constitution  of  1787  a  Compact  between  the  States.    The  views  of  Hamilton, 
Madison,  Morris,  and  other  Framers  of  the  Constitution. 

THIS  subject  has  already  been  anticipated,  but  by  no 
means  exhausted.  Considering  the  unparalleled  boldness 
of  Northern  assertion,  it  is  necessary  to  lay  bare  a  few 
more  of  its  hidden  mysteries.  "  Indeed,"  says  Mr.  Web 
ster,  "  if  we  look  into  all  contemporary  history ;  to  the 
numbers  of  The  Federalist;  to  the  debates  in  the  Conven 
tion  ;  to  the  publication  of  friends  and  foes,  they  all  agree, 
that  a  change  had  been  made  from  a  confederacy  of  States 
to  a  different  system  ;  they  all  agree,  that  the  Convention 
had  formed  a  Constitution  for  a  national  government. 
With  this  result  some  were  satisfied,  and  some  were  dissat 
isfied  ;  but  all  admitted  that  the  thing  had  been  done.  In 
none  of  the  various  productions  and  publications,  did  any 
one  intimate  that  the  new  Constitution  was  but  another 
compact  between  States  in  their  sovereign  capacity.  I  do 
not  find  such  an  opinion  advanced  in  a  single  instance."* 

Now  this  is  certainly  as  bold  and  sweeping  an  assertion 
as  could  well  be  made  in  human  language.  It  is  certainly 
as  full,  round,  and  complete  an  untruth  as  was  ever 
uttered.  It  will,  upon  examination,  be  found  that,  to  use 
the  mildest  possible  terms,  it  is  fitly  characterized  by  the 
two  words — high-sounding  and  hollow.  It  would,  perhaps, 
be  difficult  for  any  man,  except  Mr.  Webster  and  his  suc 
cessor  in  the  Senate  of  the  United  States,  to  produce  a 

*  Speech  in  Senate,  Feb.  16,  1833. 


IS   DAVIS   A   TRAITOR?  75 

bold  and  sweeping  an  assertion,  which,  like  the  above,  is 
at  every  point  diametrically  opposed  to  the  truth.  I  shall 
proceed  to  prove,  and  to  establish  beyond  the  shadow  of  a 
doubt,  this  heavy  accusation  against  "  the  great  expounder," 
by  extracts  from  the  records  and  publications  to  which  he 
so  solemnly,  and  yet  so  unscrupulously,  appeals. 

I  shall  begin  with  the  Convention  that  formed  the  Con 
stitution  itself.  It  will  not  be  necessary  to  reproduce  the 
language  of  Gouverneur  Morris,  one  of  the  most  celebrated 
men  of  that  Convention,  and  one  of  the  warmest  advo 
cates  of  a  strong  national  government.  We  have  already 
seen,  *  that  he  pronounced  the  Constitution  "  a  compact 
between  the  United  States,  each  enjoying  sov 
ereign  power."  Indeed,  in  the  Convention  of  1787,  he 
expressly  declared,  that  the  object  was  to  form  a  "  com 
pact  with  other  States;  "  and  he  afterwards  declared,  that 
"  the  thing  had  been  done."  Again,  James  Madison  himself, 
"  the  father  of  the  Constitution,"  and  the  most  laborious 
member  of  the  Convention  of  1787,  called  it,  as  we  have 
seen,  "a  pact"  between  the  States  in  that  Convention ;f 
and  from  that  day  to  the  end  of  his  life,  Mr.  Madison  con 
tinued  to  pronounce  the  new  Constitution  "a  compact  to 
which  the  States  are  the  parties."  In  the  Virginia  ratifying 
Convention  of  1788,  in  "the  numbers  of  the  Federalist"  in 
the  Virginia  Eesolutions  of  '98  and  '99,  in  the  Virginia 
Eeport  of  1800,  in  his  celebrated  letter  to  Mr.  Everett  of 
1830  ;  in  one  and  all  of  these  well-known  public  docu 
ments,  as  well  as  in  others  from  his  pen,  this  illustrious 
architect  of  the  Constitution  most  emphatically  pro 
nounced  it .  "  a  compact  to  which  the  States  are  the  par 
ties."  In  the  Virginia  Eesolutions,  a  political  formula 
which  the  American  people,  of  all  parties  and  all  sec 
tions,  had  sworn  by  for  more  than  thirty  years,  Mr. 
Madison  wrote  for  the  legislature  of  his  State :  "  This 
Assembly  doth  explicitly  and  peremptorily  declare,  that 

*  Chapter  v. 


76  IS   DAVIS   A   TRAITOR? 

it  views  the  powers  of  the  Federal  Government,  as  resulting 
from  the  compact,  to  which  the  States  are  parties."  How 
completely,  then,  was  the  very  existence  of  Mr.  Madi 
son,  and  of  all  the  great  transactions  in  which  he  had 
borne  so  conspicuous  a  part,  ignored  by  Mr.  Webster  in 
the  bold  and  astounding  assertion,  that  neither  friend  nor 
foe  had  ever  considered  the  new  Constitution  as  a  "  compact 
between  the  States."  The  venerable  old  man  must,  mdeed, 
have  felt,  as  he  read  the  speech  of  Mr.  Webster,  that  he 
was  fast  sinking  into  oblivion,  and  that  all  the  great  trans 
actions  of  his  life  were  fast  being  forgotten  amid  the  blaze 
of  new  ideas. 

Accordingly,  in  a  letter  to  Mr.  Webster,  called  forth  by 
the  very  speech  in  question,  Mr.  Madison  once  more  raised 
his  voice  in  favor  of  the  one  invariable  doctrine  of  his  life. 
"It  is  fortunate,"  says  he,  "  in  the  letter  referred  to,  "  when 
disputed  theories  can  be  decided  by  undisputed  facts ;  and 
here  the  undisputed  fact  is,  "  that  the  Constitution  was  made 
by  the  people,  but  as  embodied  into  the  several  States.  "who  were 
parties  to  it"  Again,  in  the  same  letter,  he  says:  " The 
Constitution  of  the  United  States,  being  established  by  a 
competent  authority,  by  that  of  the  sovereign  people  of  the 
several  States,  who  were  parties  to  it."  Most  fortunate  is  it, 
indeed,  when  disputed  theories  may  be  tested  by  undis 
puted  facts ;  but  how  infinitely  unfortunate  is  it,  when 
new  and  disputed  theories  begin  to  pass  for  everything, 
and  indisputable  facts  for  nothing !  Nay,  when  those  who 
cling  to  hitherto  undisputed  facts  are  accounted  traitors, 
and  visited  with  a  merciless  and  a  measureless  vengeance, 
by  those  who,  having  nothing  better  than  disputed  theo 
ries  to  stand  on,  are  nevertheless  backed  by  the  possession 
of  brute  force  sufficient  to  crush  their  opponents,  and 
silence  the  voice  of  truth ! 

All  agree,  says  Mr.  Webster,  "The  Federalist,"  "the 
debates  in  the  Conventions,"  "  the  publications  of  friends 
and  foes" — all  agree,  "that  a  change  had  been  made  from  a 


IS    DAVIS   A    TRAITOR?  77 

confederacy  of  States  to  a  different  system"  Now,  there  is 
James  Wilson,  inferior  only  to  Madison  and  Hamilton  in 
the  influence  he  exerted  in  favor  of  the  new  Constitution, 
who  declares,  that  the  only  object  aimed  at  by  the  Con 
vention  of  '87,  was  to  enable  the  States  "  to  confederate 
anew  on  better  principles ; "  and  if  no  more  could  be 
effected,  he  would  agree  to  "a  partial  union  of  the  States, 
with  a  door  left  open  for  the  accession  of  the  rest." 
Accordingly,  it  was  finally  agreed  by  the  Convention,  that 
nine  States  might  form  the  new  Union,  with  a  door  left 
open  for  the  accession  of  the  other  four.  In  fact,  eleven 
States  confederated  on  the  new  principles;  and  it  was  more 
than  a  year  before  the  remaining  two  States  acceded  to 
the  compact  of  the  Constitution,  and  became  members  of 
the  Union. 

Even  Alexander  Hamilton,  in  that  great  authority,  The 
Federalist,  to  w^hich  Mr.  Webster  so  confidently  appeals, 
is  directly  and  flatly  opposed  to  the  bold  and  unscrupulous 
assertion  of  "  the  great  expounder."  If  the  new  Consti 
tution  should  be  adopted,  says  he,  the  Union  would  "  still 
be,  in  fact  and  in  theory,  an  association  of  States,  or  a 
confederacy."  *  Again,  in  the  eightieth  number  of  the 
work,  Hamilton  calls  the  new  Union  "  the  CONFEDERACY  ;" 
putting  the  word  in  capital  letters,  in  order  that  it  may 
not  be  overlooked  by  the  most  superficial  reader.  If  neces 
sary,  it  might  be  shown  by  various  other  extracts,  that 
Alexander  Hamilton,  while  insisting  on  the  adoption  of 
the  new  Constitution  in  The  Federalist,  speaks  of  the 
new  Union  as  a  confederacy  of  States.  How,  then,  could 
Mr.  Webster  avouch  The  Federalist  to  support  the  asser 
tion,  that  "  a  change  had  been  made  from  a  confederacy 
to  a  different  system  "  ?  Was  this  in  his  character  of  "  the 
great  expounder,"  or  of  the  great  deceiver  ? 

This  appeal  to  the  Federalist  appears,  if  possible,  still 
more  wonderful,  when  viewed  in  connexion  with  other 

*  Federalist,  No.  ix. 


78  IS   DAVIS   A   TRAITOR? 

numbers  of  the  same  work.  Indeed,  it  was  objected  to 
the  new  Constitution  by  its  enemies,  that  "it  would  make 
a  change  from  a  confederacy  to  a  different  system;"  and 
this  very  objection  is  met  and  repelled  in  the  pages  of  the 
Federalist.  "Will  it  be  said,"  demands  the  Federalist, 
"that  the  fundamental  principles  of  the  confederation  were 
not  within  the  purview  of  the  Convention,  and  ought  not 
to  have  been  varied?  I  ask,  what  are  these  principles? 
Bo  they  require,  that  in  the  establishment  of  the  Constitu 
tion,  the  States  should  be  regarded  as  distinct  and  inde 
pendent  sovereigns  ?  They  are  so  regarded  by  the  Con 
stitution  proposed."*  Now  here  the  position  of  Mr.  Web 
ster,  that  the  new  Union  was  not  a  confederacy  of  States, 
that  it  was  not  made  by  the  States  "  as  distinct  and  inde 
pendent  sovereigns,"  but  was  ordained  by  "the  people  of 
the  United  States  in  the  aggregate"  as  one  nation;  is 
directly  and  emphatically  negatived  by  the  very  authority 
to  which  he  appeals  in  support  of  his  monstrous  heresy. 

Nor  is  this  all.  In  the  preceding  number  of  the  Feder 
alist,  it  is  said,  "Each  State,  in  ratifying  the  Constitution, 
is  considered  as  a  sovereign  body,  independent  of  all 
others,  and  only  to  be  bound  by  its  own  voluntary  act." 
Thus,  according  to  the  Federalist,  the  Constitution  was 
ratified  by  "each  State,  as  a  sovereign  body,  independent 
of  all  others."  No  such  thing,  says  Mr.  Webster,  it  was 
not  ratified  by  the  States  at  all,  it  was  ordained  by  a  power 
superior  to  the  States,  by  the  sovereign  will  of  the  whole 
people  of  the  United  States;  and  yet  he  boldly  and 
unblushingly  appeals  to  the  Federalist  in  support  of  his 
assertion !  Why  did  he  not  quote  the  Federalist  ?  Nay, 
why  did  he  not  read  the  Federalist,  before  he  ventured  on 
such  a  position  ? 

Mr.  Webster  has,  indeed,  quoted  one  expression  from 
the  Federalist.  "The  fabric  of  American  empire,"  says 
Hamilton,  in  the  twenty-second  number  of  the  Federalist, 

*No.  XL. 


IS    DAVIS   A    TRAITOR?  79 

"ought  to  rest  on  the  solid  basis  of  THE  CONSENT  OF  THE 
PEOPLE."  After  quoting  these  words,  Mr.  Webster  adds, 
with  his  usual  confidence,  "Such  is  the  language,  sir, 
addressed  to  the  people,  while  they  yet  had  the  Constitu 
tion  under  consideration.  The  powers  conferred  on  the 
new  government  were  perfectly  well  understood  to  be 
conferred,  not  by  any  State,  or  the  people  of  any  State, 
but  by  the  people  of  the  United  States."  Now,  if  Mr. 
Webster  had  only  paid  more  attention  to  the  debates  of 
the  Convention  of  1787,  he  might  have  escaped  this  egre 
gious  blunder,  this  gross  perversion  of  the  words  of  Alex 
ander  Hamilton.  Nay,  if  he  had  only  considered  the 
three  sentences  which  immediately  precede  the  extract 
made  by  him,  he  would  have  seen  that  Hamilton  was 
speaking  to  a  very  different  question  from  that  which  had 
so  fully  engrossed  and  occupied  his  mind.  He  would  have 
seen,  that  the  language  related,  not  to  the  question  whether 
the  Constitution  ought  to  be  ratified  by  the  people  of  the 
States,  or  by  the  people  of  America  as  one  nation;  but  to 
the  question,  whether  it  ought  to  be  ratified  by  the  Legis 
latures,  or  by  the  people,  of  the  several  States.  This  was 
the  question  of  the  Convention  of  '87 ;  and  this  was  the 
question  to  which  its  ablest  member  was  speaking,  when 
he  said  "  the  fabric  of  American  empire  ought  to  rest  on 
the  solid  basiB  of  THE  CONSENT  OF  THE  PEOPLE."  Eead  the 
context,  and  this  will  be  perfectly  plain.  "It  has  not  a 
little  contributed,"  says  the  context,  "to  the  infirmities  of 
the  existing  federal  system,  that  it  never  had  a  ratification 
of  the  PEOPLE.  Besting  on  no  better  foundation  than  the 
consent  of  the  several  Legislatures,  it  has  been  exposed  to 
frequent  and  intricate  questions  concerning  the  validity 
of  its  powers ;  and  has,  in  some  instances,  given  rise  to  the 
enormous  doctrine  of  legislative  repeal."  Such  is  the  con 
text  of  Mr.  Webster's  very  partial  and  one-sided  extract. 
It  shows  that  Hamilton  was  arguing  the  advantage  of  the 
new  system  over  the  old,  just  as  it  had  been  argued  in  the 


80  IS   DAVIS    A    TRAITOR? 

Convention  of  1787 ;  because  the  old  confederation  rested 
on  the  consent  of  the  Legislatures  of  the  several  States, 
whereas  the  new  confederacy  was  to  rest  on  the  consent 
of  the  people  of  the  several  States.  Hence  it  would  be 
free  from  all  doubts  with  respect  to  the  power  of  "legisla 
tive  repeal." 

Alexander  Hamilton  certainly  knew  that  the  Constitu 
tion  was  merely  a  proposal,  or  plan  of  government,  and 
would  so  remain  until  it  should  be  ratified  by  "the  Con 
ventions  of  nine  States;"  and  that  then  it  would  be  bind 
ing  only  "between  the  States  so  ratifying  the  same."  For 
these  are  the  words  of  the  Constitution  itself,  as  well  as 
of  his  own  formula  of  ratification  in  the  Convention  of 
1787.  These  nine  States  or  more,  thus  leagued  together 
by  a  solemn  compact  entered  into  by  the  people  of  the 
several  States  in  their  highest  sovereign  capacity,  is  "the 
solid  basis  "  to  which  he  refers ;  and  which,  like  so  many 
massive  columns,  were  to  bear  up  "the  fabric  of  American 
empire."  The  consent  of  the  whole  people  indeed !  The 
majority  of  the  whole  voting  population  of  the  United 
States,  which  may  be  one  thing  to-day  and  another  to 
morrow,  and  which  is  bound  by  nothing  but  its  own  sov 
ereign  will  and  pleasure  !  Surely,  nothing  could  be  less 
solid  or  stable,  or  less  fit  to  support  "the  fabric  of  Ameri 
can  empire."  Such  a  system  were,  indeed,  more  like  Aris- 
tophines'  City  of  the  Birds,  floating  in  mid  air,  and  tossed 
by  the  winds,  than  like  the  scheme  of  a  rational  being  for 
the  government  of  men.  No  conception  could  be  more 
utterly  inconsistent  with  all  the  well-known  sentiments  of 
Alexander  Hamilton. 

But  if,  instead  of  perverting  the  high  authority  of  the 
Federalist  by  wresting  one  particular  passage  from  its 
context,  Mr.  Webster  had  only  read  a  little  further,  he 
would  have  discovered  what  was  then  "perfectly  well 
understood"  respecting  the  nature  of  the  Constitution. 
He  would  have  discovered,  that  it  was,  according  to  the 


IS    DAVIS    A    TRAITOR?  81 

Federalist,  established,  not  by  "  the  people  of  the  United 
States  in  the  aggregate,"  or  as  one  nation,  but  by  each  of 
the  States  acting  for  itself  alone.  "The  Constitution  is  to 
be  founded,"  says  the  Federalist*  "  on  the  assent  and  rati 
fication  of  the  people  of  America,  given  by  deputies  elec 
ted  for  the  special  purpose."  This,  too,  is  the  language 
"  addressed  to  the  people,  while  they  yet  had  the  Consti 
tution  under  consideration."  Why,  then,  is  not  this  lan 
guage  seized  upon,  and  held  up  as  proof  positive,  that  the 
Constitution  rested  on  the  assent,  "not  of  any  State,  or 
the  people  of  any  State,"  but  on  that  of  "the  people  of 
America"?  The  reason  is  plain.  Though  these  words, 
taken  by  themselves,  would  have  answered  Mr.  Webster's 
purpose  better  than  his  extract  from  the  Federalist;  yet 
are  they  immediately  followed,  in  the  same  sentence,  by 
an  explanation,  which  shows  their  meaning  when  used  in 
the  Federalist.  "'The  Constitution  is  to  be  founded,"  says 
that  highest  of  all  authorities  "on  the  assent  and  ratifica 
tion  of  the  people  of  America,  given  by  deputies  elected 
for  the  special  purpose  ;  but,  it  is  added,  "this  assent  and 
ratification  is  to  be  given  by  the  people,  not  as  individuals 
comprising  one  entire  nation,  but  as  composing  the  district  and 
independent  States  to  which  they  respectively  belong.  It  is  to 
be  the  assent  and  ratification  of  the  several  States,  derived  from 
the  supreme  authority  in  each  State — the  authority  of  the  peo 
ple  themselves.  The  act,  therefore,  establishing  the  Consti 
tution  will  not  be  a  national,  but  &  federal  act."f  Not  so, 
says  Mr.  Webster,  the  Constitution  was  established  not  by 
&  federal,  but  by  a  national  act;  not  by  any  State,  or  the 
people  of  any  State,  but  by  the  whole  people  of  the  United 
States  as  one  sovereign  body;  and  yet  he  appeals  to  the 
Federalist  in  support  of  his  doctrine ! 

"That  it  will  be  a  federal,  and  not  a  national  act,"  con 
tinues  the  Federalist,  "as  these  terms  are  understood  by 
objectors,  the  act  of  the  people,  as  forming  so  many  inde- 

*  No.  XXXIX.  "flbid. 


82  IS    DAVIS    A    TRAITOR? 

pendent  states,  not  as  forming  one  aggregate  nation,  is 
obvious  from  this  single  consideration,  that  it  is  to  result 
neither  from  the  decision  of  a  majority  of  the  people  of 
the  Union,  nor  from  that  of  a  majority  of  the  states.  It 
must  result  from  the  unanimous  assent  of  the  several  States 
that  are  parties  to  it,  differing  no  otherwise  from  their 
ordinary  assent  than  in  its  being  expressed,  not  by  the 
legislative  authority,  but  by  that  of  the  people  themselves. 
Were  the  people  regarded  in  this  transaction  as  forming 
one  nation,  the  will  of  the  majority  of  the  whole  people 
of  the  United  States  would  bind  the  minority ;  in  the 
same  manner  as  the  majority  in  each  State  must  bind  the 
minority;  and  the  will  of  the  majority  must  be  determined 
either  by  a  comparison  of  the  individual  votes,  or  by  con 
sidering  the  will  of  the  majority  of  the  States,  as  evi 
dences  of  the  will  of  a  majority  of  the  people  of  the 
United  States.  Neither  of  these  has  been  adopted.  Each 
State,  in  ratifying  the  Constitution,  is  considered  as  a 
sovereign  body,  independent  of  all  others,  and  only  to  be 
bound  by  its  own  voluntary  act."  Could  language  be 
more  perfectly  explicit?  Yet,  directly  in  the  face  of  all 
this,  or  else  in  profound  ignorance  of  all  this,  Mr.  Web 
ster  appeals  to  the  authority  of  the  Federalist  in  favor  of 
the  very  position  which,  as  we  have  seen,  it  so  pointedly 
condemns.  Nay,  in  spite  of  the  clear,  explicit,  and  unan 
swerable  words  of  the  Federalist,  Mr.  Webster  appeals  to 
that  work  to  show,  as  a  fact  then  "perfectly  well  under 
stood,"  that  the  powers  of  the  new  government  were  to 
be  conferred,  or  its  Constitution  established,  not  by  the 
States,  nor  by  the  people  of  the  States,  considered  as  sov 
ereign  bodies,  and  each  acting  for  itself,  but  by  the  wrhole 
people  of  the  United  States  as  one  sovereign  body  or 
nation !  To  showr,  in  one  word,  that  the  Union  was 
formed,  not  by  an  accession  of  the  States,  but  by  the  one 
people  of  the  United  States  acting  as  a  unit!  "The 
great  expounder"  does  not  follow,  he  flatly  contradicts, 


IS    DAVIS    A    TRAITOR?  83 

the  very  work  he  appeals  to  as  the  highest  of  authorities; 
and  that,  too,  in  regard  to  the  greatest  of  all  the  political 
questions  that  have  agitated  the  people  of  America! 

There  were  those,  it  is  true,  who  regarded  the  new  Con 
stitution  as  the  fundamental,  or  organic  law,  of  one  great 
consolidated  government.  But  these  were  its  enemies. 
They  represented  it  as  such  because  they  wished  it  to  be 
rejected,  and  because  they  knew  no  other  objection  would 
render  it  so  obnoxwus  to  the  people  of  the  States.  It  is 
well  known,  indeed,  that  the  greatest  difficulty  in  the  way 
of  the  new  Union  was  the  jealousy  of  the  central  power, 
which  the  several  States  had  long  entertained.  This  jeal 
ousy  was  so  great  in  the  States  of  New  York  and  of  Vir 
ginia,  that  when  their  Conventions  met  to  ratify  or  to 
reject  the  Constitution,  it  is  well  understood,  and  admit 
ted,  that  they  were  both  opposed  to  the  new  grant  of 
powers.  The  State-Eights  men  in  both  Conventions,  wrho, 
at  first,  were  in  favor  of  rejecting  the  Constitution,  were 
in  a  majority,  as  is  well  known,  and  fully  conceded.  It 
was  only  by  the  herculean  labors  of  Alexander  Hamilton, 
that  the  Convention  of  New  York  were,  at  least,  induced 
to  ratify  it  by  a  majority  of  three  votes.  In  like  man 
ner,  the  labors,  the  management,  and  the  eloquence  of 
Mr.  Madison,  succeeded,  finally,  after  a  long  and  desperate 
struggle,  in  carrying  it  in  the  Convention  of  Virginia  by 
the  small  majority  of  ten  votes.  The  result  was  long 
doubtful  in  both  Conventions. 

Patrick  Henry,  in  the  ratifying  Convention  of  Virginia, 
put  forth  all  his  powers  to  cause  the  new  Constitution  to 
be  rejected.  His  appeals  to  the  jealousy  of  the  States  with 
respect  to  the  power  of  the  Central  Government  were  tre 
mendous.  He  dwelt,  particularly,  on  the  words  of  the 
preamble,  "We,  the  people  of  the  United  States,"  to  show 
that  his  most  fatal  objection  to  the  new  Constitution  was 
well  founded ;  and  he  added,  "  States  are  the  characteristic 
and  soul  of  a  confederacy.  If  the  States  be  not  the  agents 


84  IS    DAVIS    A    TRAITOR? 

of  this  compact,  it  must  be  one  great  consolidated  govern 
ment  of  the  people  of  the  United  States."  He  insisted 
that  it  would  be  so.  But  Patrick  Henry,  it  should  be 
remembered,  was  not  a  member  of  the  Convention  of  1787, 
and  he  was  an  enemy  of  the  new  Constitution.  His  mind 
was  fertile  and  overflowing  with  objections.  If  he  had 
known  the  history  of  the  words,  "We,  the  people  of  the 
United  States,"  as  it  appears  in  the  debates  of  the  Con 
vention,  which  had  not  then  been  published,  he  would 
have  seen,  that  "We,  the  people,"  really  meant  "We,  the 
States ;  or  We,  the  Convention,  acting  in  the  name  and 
by  the  authority  of  the  sovereign  people  of  the  several 
States.  *  Or,  if  he  had  compared  the  words  in  question 
with  the  seventh  Article  of  the  Constitution,  he  would 
have  seen,  that  the  new  Constitution  was  to  be  established 
by  the  States,  and  was  to  be  binding  only  "  between  the 
States  so  ratifying  the  same."  But  as  the  enemy,  and  not 
the  advocate,  of  the  new  Constitution,  he  labored  to  enforce 
his  objection  to  it,  rather  than  to  consider  and  weigh  its 
words,  or  explain  its  real  meaning  to  the  Convention. 

His  objection  would,  no  doubt,  have  proved  fatal  to  the 
new  Constitution,  but  for  the  presence  and  the  power  of 
James  Madison :  who  met  the  great  objection  of  Patrick 
Henry,  and  silenced  much  of  the  apprehension  which  his 
eloquence  had  created.  He  was  known  to  have  been  the 
most  diligent  and  active  member  of  the  Convention  that 
formed  the  Constitution;  and  was  supposed,  therefore,  to 
understand  its  real  import  better  than  any  man  in  the 
ratifying  Convention  of  Virginia,  His  position,  and  his 
means  of  imformation,  certainly  gave  him  a  great  advan 
tage  over  his  eloquent  rival,  Patrick  Henry.  In  his  reply 
to  Mr.  Henry,  he  explained  the  words  "We,  the  people," 
precisely  as  he  had  before  explained  them  in  the  The  Fed 
eralist.  He  said :  "  The  parties  to  it  were  the  people,  but 
not  the  people  as  composing  one  great  society,  but  the 

*See  chap.  x. 


IS    DAVIS    A    TRAITOR?  85 

people  as  composing  thirteen  sovereignties."  Again  :  "If 
it  were  a  consolidated  government,"  said  he,  "the  assent  of 
a  majority  of  the  people  would  be  sufficient  to  establish 
it.  But  it  was  to  be  binding  on  the  people  of  a  State  only 
by  their  own  separate  consent."  This  argument,  founded  on 
a  well-known  fact,  was  absolutely  unanswerable. 

Yet  Mr.  Justice  Story  has,  two  or  three  times,  quoted 
the  words  of  Patrick  Henry  in  the  Virginia  Convention, 
as  if  they  were  a  most  valuable  authority,  without  a  single 
solitary  word  in  relation  to  the  unanswerable  reply  of  Mr. 
Madison  !  On  this  point  he  is  profoundly  silent !  That  is 
to  say,  he  construes  the  Constitution,  not  as  it  was  under 
stood  by  its  framers  and  its  friends,  but  as  it  was  misrep 
resented  by  its  enemies,  in  order  to  cause  its  rejection! 
He  holds  up  the  words  of  the  one,  as  a  great  authority, 
and  he  does  not  let  the  reader  of  his  most  learned  Com 
mentaries  know  the  language  of  the  other  in  reply !  Was 
that  honest? 

Nor  is  this  all.  He  construes  the  preamble  to  the  Con 
stitution,  so  as  to  make  it  contradict  itself.  ""We,  the 
people  of  the  United  States,  in  order  to  form  a  more  per 
fect  Union."  A  Union  of  what  —  of  individuals,  or  of 
States  ?  Does  not  every  man  under  the  sun  know,  this 
means  a  Union  of  States,  and  not  of  individuals?  Or  why 
speak  of  the  United  States  at  all  ?  Or  why,  in  the  same 
preamble,  say  "this  Constitution  for  the  United  States  of 
America?" 

I  object  to  the  Massachusetts  interpretation  of  the  first 
clause  of  the  preamble  to  the  Constitution.  1.  Because 
it  falsifies  the  facts  of  history  respecting  the  mode  of  its 
ratification,  which  was  by  the  several  States  in  Convention 
assembled,  each  acting  for  itself  alone,  "  as  a  sovereign 
body,  independent  of  all  others,  and  to  be  bound  only  by 
its  own  voluntary  act,"  and  not  by  the  people  of  America 
as  one  nation.  2.  Because  it  makes  these  words,  "  We, 
the  people,"  contradict  the  seventh  Article  of  the  Consti- 


86  IS    DAVIS    A   TRAITOR? 

tution  ;  an  Article  which,  historically  considered,  has  pre 
cisely  the  same  origin  and  the  same  sense  with  those  words 
themselves.  3.  Because  it  attaches  to  these  words  a  dif 
ferent  sense  from  that  attached  to  them  by  the  Convention 
of  1787,  as  seen  in  the  debates  which  gave  rise  to  them. 
4.  Because  it  contradicts  the  sense  given  to  these  words  by 
Gouverneur  Morris,  by  James  Madison,  and  by  other  fra- 
mers  of  the  Constitution  of  the  United  States.  5.  Because, 
not  satisfied  with  making  this  clause  contradict  everything 
else,  it  makes  it  contradict  itself,  or  at  least  the  very  next 
clause  in  the  same  sentence  with  itself. 

But  there  is  another  thing  which  Mr.  Webster  could 
not  find  in  "all  contemporary  history,"  nor  in  "the 
numbers  of  The  Federalist"  nor  in  "the  publications  of 
friends  or  foes."  In  none  of  these  various  productions 
or  publications  did  any  one  intimate  that  the  new  Consti 
tution  was  but  another  compact  between  the  States  in  their 
sovereign  capacity.  I  do  not  find  such  an  opinion  advanced 
in  a  single  instance."  Hence,  after  so  careful,  so  consci 
entious,  and  so  laborious  a  search,  he  feels  perfectly  justi 
fied  in  the  assertion,  that  "the  Constitution  is  not  a 
compact  between  sovereign  States."  This  is,  indeed,  the 
very  title  of  his  speech  in  1833,  and  the  great  burden  of 
all  his  eloquence.  Yet,  with  no  very  great  research,  I 
have  found,  and  exhibited  in  the  preceding  pages,  a  mul 
titude  of  instances  in  which  "  such  an  opinion  is  advanced." 
Nor  was  it  at  all  necessary  to  ransack  "all  contemporary 
history"  f  >r  this  purpose.  The  Federalist  itself,  the  great 
political  classic  of  America,  has  already  furnished  several 
such  instances.  It  teaches  us, as  we  have  seen,  that  "each 
State,  in  ratifying  the  Constitution,  is  considered  as  a 
sovereign  body,  independent  of  all  others;*  and  also  that, 
in  the  establishment  of  the  Constitution,  the  States  are 
"regarded  as  distinct  and  independent  sovereigns. "f 

But  this,  it  may  be  said,  does  not  use  the  term  compact. 

*No.  xxxix.         f  xl. 


IS    DAVIS    A    TRAITOR?  87 

Very  well.  The  same  number  of  The  Federalist,  which 
says  that  the  Constitution  was  to  be  established  by  each 
State,  as  a  sovereign  body,  independent  of  all  others, 
calls  that  Constitution  "  THE  COMPACT."  Thus,  according 
to  The  Federalist,  the  Constitution,  THE  COMPACT,  was 
established  by  "distinct  and  independent  sovereigns." 

But  numbers  XXXIX  and  XL  were  written  by  Mr. 
Madison.  Every  one  knows,  that  he  always  regarded  the 
Constitution  as  a  compact  between  "distinct  and  independ 
ent  sovereigns."  That  is,  every  one  at  all  acquainted  with 
the  political  history  of  the  United  States,  except  Mr.  Jus 
tice  Story  and  Mr.  Webster  during  the  great  struggle  of 
1833.  It  must  be  conceded,  then,  in  spite  of  the  sweeping 
assertion  of  Mr.  Webster,  that  Madison  held  the  Constitu 
tion  to  be  "a  compact  between  the  States  in  their  sover 
eign  capacity,"  and  that,  too,  in  the  pages  of  the  Federalist 
as  well  as  elsewhere.  A  rather  conspicuous  instance  to  be 
overlooked  by  one,  whose  search  had  been  so  very  careful 
and  so  very  conscientious!  Nor  does  this  instance  stand 
alone.  Alexander  Hamilton  is  the  great  writer  of  the 
Federalist.  Oat  of  its  existing  eighty-five  numbers,  no 
less  than  fifty  proceeded  from  his  pen ;  five  from  the  pen 
of  Jay,  and  thirty  from  that  of  Madison ;  and,  in  the  opin 
ion  of  the  North,  the  numbers  of  Hamilton  surpass  those 
of  Madison  far  more  in  quality  than  in  quantity.  In  the 
estimation  of  the  North,  indeed,  Hamilton  is  the  one  sub 
lime  architect  of  the  Constitution,  to  whom  it  owes  "every 
element  of  its  durability  and  beauty."  What,  then,  does 
Hamilton  say  about  the  nature  of  the  Constitution  ?  Does 
he  call  it  a  compact  between  States,  or  does  he  allege  that 
it  was  ordained  by  the  people  of  the  United  States  as  one 
sovereign  nation?  I  do  not  wish  to  shock  any  one.  I 
am  aware,  it  will  be  regarded,  by  many  of  the  followers 
of  Story,  as  akin  to  sacrilege  to  charge  Alexander  Hamil 
ton  with  having  entertained  the  treasonable  opinion,  that 
the  Constitution  was.  a  compact  between  the  States.  But 


88  IS    DAVIS   A    TRAITOR? 

as  we  have,  at  the  South,  no  grand  manufactory  of  opin 
ions  to  supply  "all  contemporary  history,"  so  we  must 
take  the  sentiments  of  Alexander  Hamilton  just  as  we 
find  them,  not  in  the  traditions  of  the  North,  but  in  his 
own  published  productions.  The  simple  truth  is,  then, 
that  he  calls  the  provisions  of  the  Constitution  of  1787, 
"The  compacts  which  are  to  embrace  thirteen  distinct 
States,  in  a  common  bond  of  amity  and  Union ;"  and  adds, 
these  compacts  must  "necessarily  be  compromises  of  as 
many  dissimilar  interests  and  inclinations."*  Thus,  accord 
ing  to  Hamilton,  the  "thirteen  distinct  States"  made  com 
promises  with  each  other,  and  adopted  them  as  "the  com 
pacts"  of  the  new  Union! 

Nor  is  this  all.  On  the  following  page,  he  says :  "The 
moment  an  alteration  is  made  in  the  present  plan,  it 
becomes,  to  the  purpose  of  adoption,  a  new  one,  and  must 
undergo  a  new  decision  of  each  State  "^  Indeed,  even  Ham 
ilton,  the  great  consolidationist  of  his  day,  never  dreamed 
of  any  other  mode  of  adopting  the  new  Constitution,  than 
by  "a  decision  of  each  State."  Hence  he  continues,  "To 
its  complete  establishment  throughout  the  Union,  it  will 
therefore  require  the  concurrence  of  thirteen  States." 
Again,  he  says,  "Every  Constitution  for  the  United  States 
must  inevitably  consist  of  a  great  variety  of  particulars, 
in  which  thirteen  INDEPENDENT  STATES  are  to  be  accom 
modated  in  their  interests  or  opinions  of  interest. "J 

"Hence  the  necessity  of  moulding  and  arranging  all  the 
particulars  which  are  to  compose  the  whole,  in  such  a 
manner,  as  to  satisfy  all  the  parties  to  THE  COMPACT."  That 
is,  in  such  a  manner  as  to  satisfy  the  thirteen  INDEPEND 
ENT  STATES,  who  are  "THE  PARTIES  TO  THE  COMPACT. "§ 
Well  may  the  great  usurpers  of  the  North  exclaim,  "Et  tu 
Brute! 

The  whole  Federalist  is  in  perfect  harmony  with  this 
key  note  of  the  system  it  recommended  to  the  people 

* Federalist,  No.  LXXXV.         "fibid.  JJbkL 


IS    DAVIS    A    TRAITOR?  89 

• 

By  Hamilton,  the  States  are  called  "the  MEMBERS  of  the 
Union;"*  the  units  of  which  it  is  composed,  and  not  the 
fractions  into  which  it  is  divided.  Again,  he  speaks  of 
"the  Union,  and  of  its  members/'^  by  which,  as  appears 
from  the  context,  he  evidently  means  the  States.  In  like 
manner,  Mr.  Madison  speaks  of  the  new  Union  as  "  Con 
federated  States. "J  Again,  he  says,  "Instead  of  report 
ing  a  plan  requiring  the  confirmation  of  all  the  States,  they 
reported  a  plan,  which  is  to  be  confirmed,  and  may  be 
carried  into  effect,  by  nine  States  onfy."§  Indeed,  similar 
testimonies  to  the  fact,  that  the  States  entered  into  the 
compact  of  the  Constitution,  are  spread  over  the  pages 
of  the  Federalist,  as  well  as  over  "all  contemporary  his 
tory." 

I  might  easijy  produce  a  hundred  other  proofs  of  the  same 
fact  from  "the  Federalist"  from  "the  publications  of  friends 
and  foes,"  from  "the  debates  of  the  Convention, "without 
the  aid  of  "all  contemporary  history."  But  I  am  sick  of 
dealing  with  such  unbounded  and  disgusting  license  of  as 
sertion. 

The  truth  is,  that  Mr.  Webster  was  a  mere  theorist,  nay, 
a  mere  party  sophist.  He  took  an  oath  to  support,  but 
not  to  study,  the  Constitution.  Hence,  instead  of  a  close, 
partial,  and  honest  study. of  the  political  history  of  the 
country  and  of  the  Constitution ;  he  merely  looked  into 
the  great  original  fountains  of  information  to  furnish  him 
self  out  with  the  weapons  and  the  armor  of  a  party  cham 
pion,  or  prize  fighter.  If  he  ever  read  any  of  the  docu 
ments  to  which  he  so  confidently  appeals,  he  must  have 
read  them  with  a  veil  over  his  eyes;  or  else,  in  the  heat  of 
debate,  he  must  have  forgotten  all  his  first  lessons  in  the 
political  history  of  his  country.  From  his  own  generation, 
he  won  the  proud  title  of  "the  great  expounder;"  yet,  after 
his  appeal  to  posterity  shall  have  been  decided,  he  will  be 
pronounced  "the  great  deceiver." 

*No.  xlii.  fNo.  ix.  JNo.  xxxvi.  §No.  xl. 


CHAPTEK    XII. 

The  Convention  of  1787  describes  the  Constitution  formed  by  them  as  a  compact 
between  the  States. 

THE  Convention  of  1787,  in  their  letter  describing  the 
formation  of  the  new  Constitution,  use  precisely  the  polit 
ical  formula  employed  by  Sidney,  Locke,  and  other  cele 
brated  authors,  to  define  a  social  compact.  Hobbes  was 
the  first  to  reduce  this  theory  to  a  scientific  form;  and  it 
is  no  where  more  accurately  defined  than  by  himself. 
"Each  citizen,"  says  he,  "compacting  with  his  fellow,  says 
thus :  I  convey  my  right  on  this  party,  upon  condition  that 
you  pass  yours  to  the  same;  by  which  means,  that  right 
which  every  man  had  before  to  use  his  faculties  to  his 
own  advantage,  is  now  wholly  translated  on  some  certain 
man  or  council  for  the  common  benefit."*  Precisely  the 
same  idea  is  conveyed  by  the. formula  of  1787:  "individ 
uals  entering  into  society  must  give  up  a  share  of  liberty 
to  preserve  the  rest;  and  the  great  difficulty  is,  as  to 
what  rights  should  be  delegated  to  the  governing  agents 
for  the  common  benefit,  and  what  right  should  be  retained 
by  the  individual.  This  is  the  social  compact  as  defined 
by  Hobbes  himself;  and  although  it  was  an  imaginary 
transaction  in  regard  to  the  governments  of  the  Old 
World,  it  became  a  reality  in  relation  to  the  solemnly 
enacted  Constitutions  of  America. 

But,  in  the  letter  of  the  Convention  of  1787,  it  comes 
before  us  in  a  new  relation.  In  Hobbes,  "each  citizen 

*  Hobbes'  Works,  vol.  ii.,  p.  91. 


IS   DAVIS    A   TRAITOR?  91 

compacts  with  his  fellow,"  as  in  the  formation  of  our 
State  Constitutions;  whereas,  in  the  letter  before  us,  each 
State  compacts  with  her  sister  States.  "It  is  obviously 
impracticable,"  says  the  Convention,*  "in  the  Federal 
Government  of  these  States  to  secure  all  rights  of  inde 
pendent  sovereignty  to  each,  and  yet  provide  for  the 
honor  and  safety  of  all.  Individuals  entering  into  society 

must  give  up  a  share  of  liberty  to  preserve  the  rest." 

"  It  is  at  all  times  difficult  to  draw  with  precision  the  line 
between  those  rights  which  must  be  surrendered,  and 
those  which  may  be  reserved ;  and  on  the  present  occa 
sion  this  difficulty  was  increased  by  a  difference  among 
the  several  States  [the  parties  about  to  enter  into  a  new 
Union]  as  t$  their  situation,  extent,  habits,  and  particular 
interests." 

Yet,  in  the  face  of  all  this,  the  whole  school  of  Massa 
chusetts  politicians,  with  Story  and  Webster  at  their  head, 
assert,  that  the  Federal  Government  is  a  union,  not  of  States, 
but  only  of  individual  citizens  !  Who,  before  or  beside 
these  gross  perverters  of  the  most  palpable  truth,  ever 
applied  the  term  "  Union  "  to  a  government  of  individ 
uals  ?  Who  ever  heard  of  the  Union  of  Massachusetts,  or 
of  New  York,  or  of  Virginia  ?  The  truth  is,  that  this 
word  is  only  applicable  to  a  confederation  of  States  ;  and 
hence,  even  Alexander  Hamilton,  after  he  had  failed  to 
establish  a  consolidated  national  government,  familiarly 
called  the  new  Union  "  a  CONFEDERACY."!  It  was  reserved 
for  a  later  day,  and  for  a  bolder  period  in  the  progress  of 
triumphant  error,  to  scout  this  as  an  unconstitutional  idea  ; 
and  to  declare,  by  way  of  proof,  that  "there  is  no  language 
in  the  Constitution  applicable  to  a  confederation  of 
States. "J;  Is  not  the  term  "  Union,"  applicable  to  a  con 
federation  of  States,  or  is  it  only  applicable  to  a  social 
combination  of  individuals?  Does  not-  the  Constitution 

*  See  their  Letter.  f  Federalist,  No.  Ixxx. 

t  Webster's  works,  Vol.  iii.,  page  470.     Great  speech  of  1833. 


92  IS    DAVIS    A    TRAITOR? 

speak  of  "the  United  States,"  or  the  States  united? 
Way,  does  it  not  expressly  declare,  that  it  shall  be  binding 
"  between  the  States  so  ratifying  the  same  ?  "  Or,  if  the 
Constitution  itself  has  been  silent,  does  not  the  letter  of 
1787,  which  was  struck  in  the  same  mint  with  that  solemn 
compact,  declare  that  each  State,  on  entering  into  the  new 
Union,  give  .up  a  share  of  its  "  rights  of  independent 
sovereignty,"  in  order  to  secure  the  rest  ? 

I  shall  now  take  leave  of  the  proposition,  that  the  Consti 
tution  was  a  compact  between  the  States  of  the  Union  ;  a 
proposition  far  too  plain  for  argument,  if  the  clearest  facts 
of  history  had  only  been  permitted  to  speak  for  them 
selves.  "  I  remember,"  says  Mr.  Webster,  "  to  have  heard 
Chief  Justice  Marshall  ask  counsel,  who  %as  insisting 
upon  the  authority  of  an  act  of  legislation,  if  he  thought 
an  act  of  legislation  could  create  or  destroy  a  fact,  or  change 
the  truth  of  history?"  "Would  it  alter  the  fact,"  said  he, 
"if  a  legislature  should  solemnly  enact,  that  Mr.  Hume 
never  wrote  the  History  of  England?"*  "A  legislature 
may  alter  the  law,"  continues  Mr.  Webster,  "jbut  no 
power  can  reverse  a  fact."f  Hence,  if  the  Convention  of 
1787  had  expressly  declared,  that  the  Constitution  was 
ordained  by  "the  people  of  the  United  States  in  the  aggre 
gate,"  or  by  the  people  of  America  as  one  nation,  this 
would  not  have  destroyed  the  fact,  that  it  was  ratified  by 
each  State  for  itself,  and  that  each  State  was  bound  only 
by  "  its  own  voluntary  act."  If  the  Convention  had 
been  lost  to  all  decency,  it  might  indeed  have  stamped 
such  a  falsehood  on  the  face  of  the  Constitution ;  but  this 
would  not  have  "changed  the  truth  of  history." 

Story  and  Webster  lay  great  stress,  as  we  have  seen,f 
on  the  fact,  that  the  first  resolution  passed  by  the0Conven- 
tion  of  '87  declared,  that  a  National  Government  ought  to 
be  established."  But,  by  a  gross  suppressio  veri,  they  con 
ceal  the  fact,  that  this  resolution  was  afterward  taken  up, 

*Works,  Vol.  ii,  page  334.  fChap.  iv. 


IS   DAVIS   A   TRAITOR?  93 

and  the  term  national  deliberately  dropped  by  the  unani 
mous  decision  of  the  Convention.  They  also  conceal  the 
fact,  that  after  the  Constitution  was  actually  formed,  the  ' 
Convention  called  the  work  of  their  hands,  not  "a  National 
Government,"  but  "THE  FEDERAL  GOVERNMENT  OF  THESE 
STATES."  This  name  was  given,  not  before,  but  after,  the 
Convention  was  ftill;  not  before  the  first  article  of  the 
Constitution  was  adopted,  but  after  the  whole  instrument 
had  been  completely  finished;  and  it  was  given,  too,  by 
"the  unanimous  order  of  the  Convention."*  Yet,  in  con 
tempt  of  all  this,  Story  and  Webster  say,  that  the  Con 
vention  made,  not  a  "Federal  Government  of  States,"  but 
"a  National  Government "  for  the  one  people  of  America, 
and  they  prove  this,  by  the  exploded  resolution  passed  by 
them !  That  is,  they  still  insist  on  the  name  expressly 
rejected  by  the  Convention,  as  if  it  had  received  the  sanc 
tion  of  their  high  authority;  and  that,  too,  in  direct  oppo 
sition  to  the  name  actually  given  by  them!  Could  any 
style  of  reasoning,  if  reasoning  it  may  be  called,  be  more 
utterly  contemptible? 

*See  their  Letter  to  Congress. 


CHAPTEE    XIII. 

Mr.  Webster  versus  Mr.  Webster. 

IN  the  preceding  chapter,  Mr.  Webster  has  been  con 
fronted  with  reason  and  authority;  showing  that  "the 
greatest  intellectual  effort  of  his  life"  is  merely  a  thing 
of  words.  In  this,  he  shall  be  confronted  with  himself 
for,  in  truth,  he  is  at  war  with  himself,  as  well  as  with 
all  the  great  founders  of  the  Constitution  of  the  United 
States.  He  is,  in  fact,  too  much  for  himself;  and  the 
great  speech  which,  in  1833,  he  reared  with  so  much  pains 
and  consummate  skill  as  a  rhetorician,  he  has  literally  torn 
to  tatters. 

"If  the  States  be  parties"  [to  the  Constitution],  asks 
Mr.  Webster,  in  that  speech,  with  an  air  of  great  confi 
dence,  "where  are  their  covenants  and  stipulations? 
And  where  are  their  rights,  covenants,  and  stipulations 
expressed?  The  States  engage  for  nothing,  they  promise 
nothing."  On  reading  this  passage,  one  is  naturally 
inclined  to  ask,  did  Mr.  Webster  never  hear  of  "  the  grand 
compromises  of  the  Constitution"  about  which  so  much 
has  been  written?  But  what  is  a  compromise,  if  it  is  not 
a  mutual  agreement,  founded  on  the  mutual  concessions 
of  the  parties  to  some  conflict  of  opinions  or  interests? 
Does  not  the  very  term  compromise  mean  mutual  promises 
or  pledges?  Look  at  the  large  and  small  States  in  the 
Convention  of  1787.  We  see,  in  that  memorable  strug 
gle  for  power,  the  large  States  insisting  on  a  large  or  pro 
portionate  representation  of  themselves  in  both  branches 


IS   DAVIS    A   TRAITOR?  95 

of  the  federal  legislature ;  and  we  see  the  small  States, 
with  equal  pertinacity,  clinging  to  the  idea  of  an  equal 
representation  in  both.  The  struggle  is  fierce  and  obsti 
nate.  The  Convention  is  on  the  point  of  dissolution,  and 
its  hopes  are  almost  extinguished.  But,  a  compromise  is 
.suggested,  considered,  argued,  and  finally  adopted ;  accord 
ing  to  which  there  is  to  be  a  proportionate  representation 
of  each  State  in  one  branch  of  the  federal  legislature,  and 
an  equal  representation  in  the  other.  These  are  the  terms, 
"the  covenants,"  "the  stipulations,"  on  which  the  two 
classes  of  States  agree  to  unite;  these  are  their  mutual 
promises. 

The  same  thing  is  true  in  regard  to  all  the  other  "grand 
compromises  of  the  Constitution."  It  seems,  indeed,  that 
Mr.  Webster  could  not  well  speak  of  these  compromises, 
without  using  some  such  word  as  terms,  or  covenants,  or 
promises,  or  stipulations.  Accordingly,  if  we  turn  to  the 
general  index  to  his  works,  in  order  to  see  how  he  would 
speak  of  the  compromises  of  the  Constitution;  we  shall 
be  led  to  make  a  very  curious  discovery,  and  one  which 
is  intimately  connected  with  an  interesting  passage  of  his 
political  life.  It  will  conduct  us  to  a  scene,  in  which  "the 
beautiful  vase,"  then  "  well  known  throughout  the  coun 
try  as  the  WEBSTER  YASE,"  was  presented  to  that  cele 
brated  statesman.  Several  thousand  persons  "had  assem 
bled  at  the  Odeon,  in  Boston,"  in  order  to  witness  the 
presentation  of  that  costly  memorial,  and  to  hear  the 
reply  of  the  great  orator.  "The  vase,"  we  are  told  "was 
placed  on  a  pedestal  covered  with  the  American  flag,  and 
contained  on  its  side  the  following  inscription : 

PRESENTED    TO 

DANIEL    WEBSTEE, 
The  Defender  of  the  Constitution, 

BY  THE  CITIZENS  OF  BOSTON. 
OCTOBER  12,  1835." 

Now  this  beautiful  vase,  so  rich  in  its  material  and  so 


96  IS   DAVIS    A    TRAITOR? 

exquisite  in  its  workmanship,  was  presented  to  Mr.  "Web 
ster  in  honor  of  his  great  speech  of  1833 ;  in  which  he 
demonstrated  to  the  entire  satisfaction  of  the  New  Eng 
land  universe,  that  it  is  absurd  to  call  the  Constitution  "a 
compact,"  or  to  speak  of  its  "stipulations."  Now  I  shall 
produce  one  extract  from  this  speech  at  the  Odeon,  not 
only  on  account  of  the  striking  contrast  it  presents  to  the 
doctrine  of  the  speech  of  1833,  whose  glories  thousands 
were  there  assembled  to  celebrate,  but  also  on  account  of 
the  simple,  solid,  and  important  truth  it  contains.  "The 
Constitution,"  says  Mr.  Webster,  in  that  speech,  "is 
founded  on  compromises,  and  the  most  perfect  and  absolute 
good  faith,  IN  REGARD  TO  EVERY  STIPULATION  OF  THIS 

KIND  CONTAINED  IN  IT  IS  INDISPENSABLE  TO  ITS  PRESERVA 
TION.  Every  attempt  to  accomplish  even  the  best  purpose, 
every  attempt  to  grasp  that  which  is  regarded  as  an 
immediate  good,  in  violation  of  these  STIPULATIONS,  is  FULL 

OF  DANGER  TO    THE  WHOLE    CONSTITUTION."*       Such  glaring 

inconsistencies,  and  there  are  many  of  them  in  the  wri 
tings  of  the  great  orator,  will  be  flaws  and  cracks  in  the 
vase  of  his  reputation  as  long  as  his  name  is  known. 

Nor  is  this  the  only  instance  in  which  Mr.  Webster  has 
spoken  of  the  stipulations  of  the  Constitution.  "All  the 
stipulations"  says  he,  "contained  in  the  Constitution  in 
favor  of  the  slave  States  ought  to  be  fulfilled."  f  Here,  then, 
are  stipulations  in  favor  of  States,  and  made  by  States. 
"Slavery,"  says  he,  "as  it  exists  in  the  States,  is  beyond 
the  reach  of  Congress.  It  is  a  concern  of  the  States  them 
selves  ;  they  have  never  submitted  it  to  Congress,  and  Congress 
has  no  rightful  power  over  #."{  Nor  has  the  Federal  Gov 
ernment  the  rightful  power  over  anything  in  relation  to 
the  States;  unless  this  power  was  granted  by  the  States, 
and  so  became  one  of  the  stipulations  in  the  new  "Arti 
cles  of  Union,"  as  the  Constitution  is  called  throughout 
the  debates  in  the  Convention  of  1787. § 

*Works,  vol.  1,  p.  331.  fWorks,  vol.  v.  p.  347. 

§  Madison  papers,  pp.  732,  734,  761,  861,  1118, 1221,  1225. 


IS    DAVIS    A    TRAITOR?  97 

The  power  of  the  Federal  Government  over  commerce 
has  been  very  justly  called  "the  corner  stone  of  the  whole 
system."  The  Constitution  originated,  as  we  have  seen, 
in  the  desire  to  establish  a  uniform  and  permanent  system 
of  commercial  regulations,  by. which  the  hostile  legislation 
of  Europe  might  be  resisted,  and  the  havoc  of  the  interna 
tional  legislation  of  the  States  repaired.  Whence  did  this 
great  power,  or  rather  this  great  system  of  powers,  ema 
nate  ?  "  The  States,"  says  Mr.  Webster,  "delagated  their 
whole  authority  over  imports  to  the  general  government"*  In 
like  manner,  every  other  power  of  the  vast  superstructure 
reared  upon  that  corner  stone,  was  delegated  or  conferred 
on  the  Federal  Government  by  the  States  in  the  "Articles 
of  Union." 

Mr.  Webster  and  Mr.  Justice  Story  say  the  Constitution 
speaks  the  language  of  authority  to  the  States,  saying  you 
shall  do  this,  or  you  shall  not  do  that,  and  eschews  the 
verbal  forms  of  a  compact.  Tery  great  stress  is  laid  on 
this  point.  The  Constitution,  say  they,  is  not  "a  compact 
between  States,"  it  is  "  the  supreme  law,"  as  if  the  two 
things  were  utterly  incompatible.  But  it  is  a  rather  unfor 
tunate  circumstance  for  this  argument,  that  precisely  the 
same  language  of  authority  is  used  in  the  old  Articles  of 
Confederation,  which  is  universally  admitted  to  have  been 
a  compact.  "No  State  shall,"  is  the  style  of  the  old  Arti 
cles  of  Union,"f  as  well  as  of  the  new;  in  this  respect, 
they  are  perfectly  parallel.  . 

But  here,  again,  tve  may  appeal  from  Philip  drunk,  to 
Philip  sober,  from  Webster  intoxicated  with  the  fumes  of 
a  false  theory  of  power  to  Webster  under  the  influence  of 
a  simple  view  of  truth.  After  having  read  the  terms  on 
which  Texas  was  admitted  into  the  Union,  Mr.  Webster 
asks,  "Now  what  is  here  stipulated,  enacted,  secured?"  thus 

*Works,  vol.  ii,  p.  318.     These  words  are  quoted  by  Mr.  Webster, 
with  his  expressed  approbation, 
t  See -Articles  V.  and  VI. 
6 


98  IS    DAVIS   A   TRAITOR? 

admitting  that  the  stipulations  were  enactments,  or  that  the 
contract  was  a  law.     Nor  is  this  all.     For,  having  specified 
the  stipulations  in  this  case,  he  proceeds  to  say,  "1  know  no 
form  of  legislation  which  can  strengthen  this.     I  know  no 
mode  of  recognition  that  can  add  a  tittle  to  the  weight  of 
it.     I  listened  respectfully  to  the  resolutions  of  my  friend 
from  Tennessee.     He  proposed  to  recognize  that  stipulation 
with  Texas.  ^  But  any  additional  recognition  would  weaken 
the  force  of  it ;  because  it  stands  here  on  the  ground  of  a  con 
tract,  a  thing  done  for  a  consideration.    IT  is  A  LAW  FOUNDED 
ON  A  CONTRACT  WITH  TEXAS."     There  is,  then,  after  all,  no 
incompatibility  between  a  contract  and  a  law!     On  the 
contrary,  the  very  highest  form  of  legislation  may  be  that 
of  a  compact  between  sovereign  States.     It  was  thus,  that 
Texas  came  into  the  Union;  and,  in  consideration  of  cer 
tain  things  promised  to  her,  agreed  to  accept  the  Consti 
tution  of  the  United  States  as  the  supreme  law  of  the  land. 
It  was  thus  also,  that  the  original  thirteen  States,  in  view 
of  certain  advantages  expected  .by  them,  and  held  out  to 
them,  conferred  various  powers  on  the  Federal  Govern 
ment  to  be  exercised  for  the  common  good.     Each  State, 
as  it  adopted  the    Constitution,  virtually  said  to  every 
other,  I  will  abstain  from  the  exercise  of  certain  powers, 
and  grant  or  delegate  certain  powers,  according  to  all  the 
stipulations  of  this  instrument,  provided  you  will  do  the 
same*  thing.     I  will  neither  coin  money,  nor  emit  bills  of 
credit,  nor  enact  laws  impairing  the  obligation  of  contracts, 
nor  do  any  other  thing,  which,  in  the  view  of  the  authors 
of  the  Constitution,  has  proved  so  injurious  to  the  best 
interests  of  the  country,  provided  you  will  abstain  from 
the  exercise  of  the  same  powers.     And  I  will,  on  the  othej- 
hand,  consent  that  the  General  Government  may  regulate 
commerce,   levy  taxes,   borrow   money   on   the  common 
credit,  wage  war,  conclude  peace,  and  do  all  acts  and  things 
as  stipulated  in  the  new  "Articles  of  Union,"  provided 
you  will  delegate  the  same  powers.     Such  was  "  the  con- 


IS    DAVIS    A   TRAITOR?  90 

tract,  the  thing  done  for  a  consideration."  The  great  stip 
ulation  of  all  was,  that  the  Constitution  should  be  the 
supreme  law  of  the  land ;  for  that  became  the  supreme 
law  only  by  the  mutual  agreement  of  the  States.  But 
why  argue  a  point  so  plain  ?  How  any  man  can  look  the 
Constitution  in  the  face,  or  read  its  history,  and  then  ask, 
where  are  its  stipulations?  is  more  than  I  can  conceive. 
It  does  seem  to  me,  that  he  might  almost  as  well  look  into 
the  broad  blaze  of  noon,  and  then  ask,  If  the  sun  really 
shines,  where  are  its  rays? 

But  if  the  Constitution  is  not  a  compact  for  the  North, 
it  is  at  least  held  to  be  binding,  as  such,  on  the  South. 
The  free  States,  said  Mr.  "Webster  in  1850,  "complain 
that,  instead  of  slavery  being  regarded  as  an  evil,  as  it 
was  then,  it  is  now  regarded  by  the  South  as  an  insti 
tution  to  be  cherished,  and  preserved,  and  extended."  * 
"The  North  finds  itself,"  he  continues,  "in  regard  to 
the  relative  influence  of  the  South  and  the  North,  of  the 
free  States  and  the  slave  States,  where  it  did  not  expect 
to  find  itself,  when  they  agreed  to  the  compact  of  the 
Constitution."!  THUS,  AFTER  ALL,  THE  STATES  AGREED 

TO  THE  COMPACT  OF  THE  CONSTITUTION,  MR.  WEBSTER  HIM 
SELF  BEING  THE  JUDGE. 

Again,  in  1851,  Mr.  "Webster  says:  When  the  Consti 
tution  was  framed,  its  framers,  and  the  people  who  adop 
ted  it,  came  to  a  clear,  express,  unquestionable  stipula 
tion  and  compact."  J  In  the  same  speech,  he  says:  "  These 
States  passed  acts  defeating  the  law  of  Congress,  as  far  as 
it  was  in  their  power  to  defeat  it.  Those  of  them  to 
whom  I  refer,  not  all,  but  several,  nullified  the  law  of  1793. 
They  said,  in  effect,  'we  will  not  execute  it.  No  runaway 
slave  shall  be  restored.'  Thus  the  law  became  a  dead 
letter.  But  here  was  the  Constitution  and  compact  still 
binding;  here  was  the  stipulation,  as  solemn  as  words 

*  Works,  Vol.  V.  p.  359.        f  Webster's  Works,  Vol.  V.  p.  359. 
J  Ibid,  Vol.  II.  p.  574. 


100  IS    DAVIS    A   TRAITOR? 

could  form  it,  and  which  every  member  of  Congress,  every 
officer  of  the  general  government,  every  officer  of  the  State 
government,  from  governors  down  to  constables,  is  sworn 
to  support."*  Thus,  in  1850  and  1851,  it  appears  that  Mr. 
Webster  had  as  completely  forgotten  "the  greatest  intel 
lectual  effort  of  his  life,"  as  in  .1833  he  had  forgotten  all 
the  great  intellectual  efforts  of  Mr.  Madison's  life.  The 
truth  is,  that  Mr.  Webster  had  became  alarmed  at  the 
condition  of  the  country;  because  the  North,  which  he 
had  taught  to  deny  that  the  Constitution  is  a  compact, 
seemed  resolved  to  reduce  his  theory  to  practice  and  give 
all  its  stipulations  to  the  winds,  provided  they  only  stood 
in  the  way  of  their  passions.  Many  of  his  former  friends 
had,  indeed,  deserted  and  denounced  him,  because  he 
would  not  go  all  lengths  with  them  in  disregarding  the 
most  solemn  compact  of  the  Constitution,  which  all  had 
sworn  to  support.  Hence,  he  wished  to  retrace  his  steps ; 
but  he  could  not  lay  the  mighty  spirit  of  insubordination 
and  rebellion  which  he  had  helped  to  arouse  in  the  North. 
He  could  only  plead,  expostulate,  and  denounce  in  return. 

Accordingly,  in  the  speech  just  quoted,  he  says:  "It 
has  been  said  in  the  States  of  New  York,  Massachusetts, 
and  Ohio,  over  and  ove>  again,  that  the  law  shall  not  be 
executed.  That  was  the  language  of  Conventions  in 
Worcester,  Massachusetts ;  in  Syracuse,  New  York ;  and 
elsewhere.  And  for  this  they  pledged  their  lives,  their 
fortunes,  and  their  sacred  honors.  Now,  gentlemen,  these 
proceedings,  I  say  it  upon  my  professional  reputation, 
are  distinctly  treasonable.  [Resolutions  passed  in  Ohio, 
certain  resolutions  in  New  York,  and  in  Conventions  held 
in  Boston,  are  distinctly  treasonable.  And  the  act  of 
taking  away  Shadrick  from  the  public  authorities  in  Bos 
ton,  and  sending  him  off,  was  an  act  of  clear  treason."  f 

The  spirit  of  the  resolutions  which  are  here  so  emphat 
ically  denounced  by  Mr.  Webster,  afterward  seized  whole 

*  Webster's  Works,  vol.  ii,  p.  675.  f  Ibid.  p.  677. 


IS   DAVIS    A    TRAITOR?  101 

States,  and  controlled  their  legislation.  In  fourteen  of 
the  Northern  States,  indeed,  laws  were  enacted  to  pre 
vent  the  execution  of  the  law  of  Congress.  These  laws, 
as  Mr.  Webster  himself,  if  living,  would  have  said,  were 
"  distinctly  treasonable."  They  came  directly  into  con 
flict  with  the  law  of  Congress,  and  nullified  the  compact 
of  the  Constitution  relative  to  fugitive  slaves.  What 
shall  we  say  then?  Was  secession,  under  such  circum 
stances,  treason?  Was  it  rebellion?  Mr.  Webster  has,  in 
one  of  his  speeches,  laid  down  a  principle  which  never 
has  been,  and  never  can  be,  controverted.  He  says :  "  I 
do  not  hesitate  to  say  and  repeat,  that  if  the  Northern 
States  refuse  wilfully  and  deliberately  to  carry  into  effect 
that  part  of  the  Constitution  which  respects  the  restora 
tion  of  fugitive  slaves,  the  South  would  be  no  longer 
bound  to  keep  the  compact.  A  bargain  broken  on  one 
side  is  broken  on  all  sides."  I  have  said,  that  this  is  a 
principle  of  truth  and  justice,  which  never  has  been,  and 
never  can  be  denied.  It  was,  indeed,  precisely  the  prin 
ciple  which  governed  the  Convention  of  1787  in  with 
drawing  from  the  first  compact  between  the  States.  I  do 
not  mean  to  say,  however,  that  this  great  principle  of 
truth  and  justice  may  not  be  practically  denied.  In  fact, 
the  Northern  power  has  not  only  claimed,  but  exercised, 
the  right  to  trample  the  compact  of  the  Constitution 
under  foot ;  and,  at  the  same  time,  to  visit  with  fire,  sword, 
desolation,  and  ruin,  those,  who  merely  wished  to  with 
draw  from  the  broken  thing,  and  let  it  alone. 

According  to  the  doctrine  laid  down  by  Story  and  Web 
ster,  if  a  compact  between  States  assign  no  term  for  its 
continuance,  then  the  States  have  a  right  to  secede  from 
it  at  pleasure.*  This  doctrine  is,  no  doubt,  perfectly  true. 
But  precisely  such  was  the  compact  from  which  the  South 
ern  States  wished  to  withdraw ;  no  period  was  prescribed 
for  its  continuance.  Yet  the  North,  who  had  trampled  it 

*  See  Chapter  II. 


102  IS    DAVIS    A    TRAITOR? 

under  foot,  punished  the  South  with  the  most  terrible  of 
all  wars;  because  she  was  pleased  to  regard  secession  as  a 
violation  of  that  "most  sacred  compact." 

No  man,  as  we  have  seen,  could  well  be  more  inconsis 
tent  on  any  subject,  than  "the  great  expounder"  was  in 
relation  to  the  most  important  of  all  questions  respecting 
the  Constitution.  It  was,  with  him,  either  a  compact 
between  the  States,  or  not  a  compact  between  the  States, 
according  to  the  exigencies  of  the  occasion.  He  could  be 
equally  eloquent  on  both  sides  of  the  question.  He  com 
plained,  in  1850,  that  the  South  had  changed  her  opinions 
on  the  subject  of  slavery.  .Might  not  the  South  complain, 
that  he  had  no  opinions,  or  at  least  no  convictions,  to 
change?  The  man  who  really  seeks  the  truth,  and,  when 
found,  clings  to  it  as  the  choicest  treasure  of  his  soul,  may 
well  leave  his  consistency  to  take  care  of  itself.  But  the 
man  who  seeks  place,  or  power,  or  popularity  more  than 
the  truth,  should  indeed  have  a  good  memory.  The  one 
may,  and  indeed  will,  sometimes  change  his  opinions,  but 
then,  in  the  midst  of  all  his  changes,  he  will  be  ever  true, 
like  the  needle,  which  only  turns  until  it  finds  the  pole. 
Whereas  the  other,  in  his  variations,  is  like  the  weather 
cock,  which  shifts  with  the  breeze  of  the  passing  hour,  and 
never  finds  a  point  of  permanent  rest.  Even  the  intellect 
of  a  Webster,  where  the  moral  man  is  deficient,  can  fur 
nish  no  exemption  from  this  law  of  retributive  justice. 

Mr.  Webster's  real  opinion,  however,  seems  to  have 
been  that  the  Constitution  was  a  compact  between  the 
States.  His  great  speech  of  1833  may  have  convinced 
others ;  it  certainly  did  not  convince  himself;  for  during 
the  remainder  of  his  life,  he  habitually  and  constantly 
spoke  of  the  Constitution  as  the  compact  formed  by  the 
States.  Especially  after  his  race  was  nearly  run,  and, 
instead  of  the  dazzling  prize  of  the  Presidency,  he  saw 
before  him  the  darkness  of  the  grave,  and  the  still  greater 
darkness  that  threatened  his  native  land  with  ruin;  he 


IS   DAVIS   A   TRAITOR?  103 

raised  the  last  solemn  utterances  of  his  mighty  voice  in 
behalf  of  "the  compact  of  the  Constitution;"  declaring 
that  as  it  had  been  "  deliberately  entered  into  by  the 
States,"  so  the  States  should  religiously  observe  "all  its 
stipulations." 


CHAPTEE     XIV. 

The  absurdities  flowing  from  the  Doctrine  that  the  Constitution  is  not  a  Compact 
be  tween  the  States,  but  was  made  by  the  People  of  America  as  one  Nation. 

WHEN  I  come  to  consider  "  the  sovereignty  of  the  peo 
ple,"  about  which  so  much  has  been  said,  we  shall  see  the 
fallacy  of  the  position,  which  is  everywhere  assumed  by 
Mr.  Webster  and  his  school,  that  "  the  aggregate  commu 
nity,  the  collected  will  of  the  people,  is  sovereign."*  We 
shall  then  see,  that  this  doctrine  is  utterly  without  foun 
dation  in  history,  and  without  support  from  reason.  On 
the  contrary,  it  will  then  be  rendered  manifest,  that  the 
people  of  America  have  never  existed  as  one  nation, 
clothed  with  sovereign  authority;  an  idea  wThich  has  no  foun 
dation  in  fact,  and  which  has  grown  out  of  the  popular  use 
of  language  and  the  passions  of  politicians.  But,  at  pre 
sent,  I  merely  wish  to  point  out  a  few  of  the  absurdities 
flowing  from  this  doctrine,  that  the  Constitution  was 
ordained  by  "the  aggregate  community,  the  collected  will 
of  the  people"  of  America,  acting  as  one  sovereign  politi 
cal  society.  This  argument  alone,  this  reductio  ad  absur- 
dum,  is  amply  sufficient,  unless  I  am  greatly  mistaken,  to 
shatter  that  already  shattered  hypothesis. 

Mr.  Justice  Story,  quoting  the  Declaration  of  Independ 
ence,  says:  "It  is  the  right  of  the  people,  (plainly 
intending  the  majority  of  the  people,)  to  alter,  or  to  abolish 
it,  and  to  institute  a  new  government,  laying  its  foundation 
on  such  principles,  and  organizing  its  powers  in  such  forms, 

*  Works,  Vol.  vi.,'page  222. 


IS    DAVIS    A    TRAITOR?  105 

as  to  them  shall  seem  most  likely  to  effect  their  safety  and 
happiness." *  Now  this  is  what  is  meant  by  the  sover 
eignty  of  the  people  in  America.  But  will  any  one  contend, 
that  the  people  of  the  United  States,  that  is,  a  majority  of 
them,  may  alter,  or  amend,  the  government  of  the  Union? 
If  they  are,  indeed,  one  people  in  the  political  sense  of  the 
word,  then  are  they  sovereign ;  and  if  as  such  they  made  the 
Constitution  of  the  United  States,  then,  according  to  all  our 
American  ideas  and  doctrines,  they  have  the  right  to  alter 
or  amend  that  Constitution  at  their  pleasure.  Nay,  more; 
they  have  the  right  to  pull  down  the  existing  government, 
and  to  set  up  a  new  one  in  its  place.  But  who  will  accept 
such  a  consequence?  This  right  of  sovereignty,  if  it 
exist,  or  if  the  one  people  exist  to  whom  it  naturally 
belongs,  it  is,  according  to  the  universally  received  doc 
trine  of  this  continent,  inherent  and  inalienable.  No  laws 
or  constitutions  can  take  it  away,  or  abridge  and  limit  its 
exercise.  Who  will  say,  then,  that  the  people  of  the  United 
States,  "  plainly  meaning  the  majority  of  them,"  have 
such  a  right  or  authority  ?  No  one.  Plainly  and  inevita 
bly  as  this  consequence  flows  from  the  fundamental  posi 
tion  of  Story  and  Webster,  that  the  sovereign  people  of 
America  ordained  the  Constitution,  it  will  be  avowed  by 
no  one,  who  has  any  reputation  to  lose,  and  who  has  the 
least  respect  for  the  reputation  he  possesses.  Mr.  Lincoln 
has  avowed  this  consequence.  But  in  this  instance,  as  in 
many  others,  his  logic  has  taken  advantage  of  his  want  of 
information. 

This  consequence  flows  so  naturally  and  so  necessarily 
from  the  premises,  that  Mr.  Justice  Story  has,  in  one  place, 
inadvertently  drawn  it;  or  rather  it  has  incidentally 
drawn  itself.  "  The  people  of  the  United  States,"  says 
he,  "have  a  right  to  abolish,  or  alter  the  Constitution 
of  the  United  States."  f  True,  if  they  made  it;  but  they 
did  not  make  it,  and  therefore  they  have  the  right  neither 

*  Vol.  i.,  Book  iii.,  chap.  iii.        f  Vol.  i.,  Book  iii..  chap.  iii. 
6* 


106  IS   DAVIS   A    TRAITOR? 

to  alter  nor  to  abolish  it.  The  power  that  made,  is  the 
power  to  unmake.  Mr.  Justice  Story  did  not  mean,  that 
is,  he  did  not  deliberately  mean,  that  the  people  of  the 
United  States,  or  the  majority  of  them,  could  alter  or 
abolish  the  Constitution ;  for  he  was  too  well  informed  to 
be  capable  of  such  a  blunder.  But  in  this  instance,  as  in 
many  others,  his  logic,  speaking  the  language  of  nature 
and  of  truth,  got  the  better  of  his  artificial  and  false 
hypothesis. 

If  the  people  of  the  United  States  are,  in  reality,  one 
sovereign  political  community,  and  as  such,  ordained  the 
Constitution,  then  they  have  the  most  absolute  control 
over  all  the  parts;  and  the  States  bear  the  same  relation 
to  this  one  grand  and  overshadowing  sovereignty,  that 
counties  sustain  to  a  State.  They  may  be  divided,  or 
moulded,  or  abolished,  at  the  pleasure  of  the  whole  people. 
But  everybody  knows  better  than  this.  Mr.  Lincoln  did, 
it  is  true,  endorse  this  conclusion,  in  the  first  speech  he 
ever  made  to  the  American  public.  When  the  long  silence 
was  broken,  and,  as  President  elect,  he  addressed  his  first 
word  to  an  anxious  country,  he  likened  the  relation 
between  the  States  and  the  Union  to  that  of  countries  to  a 
State.  Until  then,  there  were  many  intelligent  and  well- 
informed  persons,  who  did  not  believe,  that  there  was  one 
individual  in  the  United  States  capable  of  taking  such  a 
view  of  the  Constitution,  except  among  political  preachers 
or  parsons.*  But  however  absurd,  it  is  only  the  necessary 
consequence  of  the  premises  laid  down  by  Mr.  Justice 
Story  and  Mr.  Webster.  It  will,  however,  be  regarded  by 
every  student  of  the  Constitution  in  the  light  of  a  reductio 
ad  absurdum,  which,  instead  of  establishing  the.  conclusion 
to  which  it  leads,  only  shatters  and  demolishes  the  position 
from  which  it  flows.  • 

*Jndeed,  this  doctrine,  and  the  very  illustration  of  it,  was  bor 
rowed  by  Mr.  Lincoln  from  the  celebrated  Preacher  of  Princeton, 
N.  J.  Compare  Mr.  Lincoln's  speech  with  Dr.  Hodge  on  u  the 
State  of  the  Country." 


CHAPTEE    XV. 

The  hypothesis  that  the  people  of  America  form  one  Nation. 

have  seen,  in  the  preceding  chapter,  some  of  the 
absurdities  flowing  from  the  assumption,  that  the  people 
of  America  form  one  nation,  or  constitute  one  political 
community.  But  as  this  is  the  jt^otov  rtawoo^  the  first  and 
all-comprehending  falsehood,  of  the  Northern  theory  of 
the  Constitution,  by  which  its  history  has  been  so  sadly 
blurred,  if  not  obliterated,  and  by  which  its  most  solemn 
provisions  have  been  repealed,  so  we  shall  go  beyond  the 
foregoing  reductio  ad  absurdum,  and  show  that  it  has  no 
foundation  whatever  in  the  facts  of  history.  I  was  about 
to  say,  that  it  has  not  the  shadow  of  such  a  foundation; 
but,  in  reality,  it  has  precisely  such  a  shadow  in  the  vague 
popular  use  of  language,  to  which  the  passions  of  inter 
ested  partisans  have  given  the  appearance  of  substance. 
And  it  is  out  of  this  substance,  thus  created  from  a  shadow, 
that  have  been  manufactured  those  tremendous  rights  of 
national  power,  by  which  the  clearly-reserved  rights  of  the 
States  have  been  crushed,  and  the  most  unjust  war  of  the 
modern  world  justified.  I  purpose,  therefore,  to  pursue 
this  7t£otov  rt<sfvoo£,  this  monstrous  abortion  of  night  and 
darkness,  into  the  secret  recesses  of  its  history,  and  leave 
neither  its  substance  nor  its  shadow  in  existence.  For 
tunately,  in  the  prosecution  of  this  design,  it  is  only  neces 
sary  to  cross-examine  those  willing  witnesses  by  whom 
this  fiction  has  been  created,  and  compare  their  testimony 
with  itself,  in  order  to  show  that  they  are  utterly  unwor- 


108  IS    DAVIS    A   TRAITOR? 

thy  of  credit  as  historians  of  the  American  Union.     I  shall 
begin  with  Mr.  Justice  Story. 

The  attempt  of  Mr.  Justice  Story  to  show,  that  the  people 
of  America  formed  one  nation  or  State. 

This  celebrated  commentator  strains  all  the  powers  of 
language,  and  avails  himself  of  every  possible  appearance, 
to  make  the  colonies  of  America  "  one  peeple,"  even 
before  they  severed  their  dependence  on  the  British 
crown.  Thus,  he  says :  "  The  colonies  were  fellow- 
subjects,  and  for  many  purposes  one  people.  Every  colo 
nist  had  a  right  to  inhabit,  if  he  pleased,  in  any  other 
colony;  and  as  a  British  subject,  he  was  capable  of  inher 
iting  lands  by  descent  in  every  other  colony.  The  com 
mercial  intercourse  of  the  colonies,  too,  was  regulated  by 
the  laws  of  the  British  empire ;  and  could  not  be  restrained, 
or  obstructed,  by  colonial  legislation.  The  remarks  of 
Mr.  Chief  Justice  Jay  on  this  subject  are  equally  just  and 
striking:  'All  the  people  of  this  country  were  then 
subjects  of  the  king  of  Great  Britain,  and  owed  allegiance 
to  him ;  and  all  the  civil  authority  then  existing,  or  exer 
cised  here,  flowed  from  the  head  of  the  British  empire. 
They  were,  in  a  strict  sense,  /eZ/ot#-subjects,  and  in  a 
variety  of  respects,  one  people.'"* 

Now  all  this  signifies  just  exactly  nothing  as  to  the 
purpose  which  the  author  has  in  view.  For,  no  matter  in 
what  respects  the  colonies  were  "one  people,"  if  they 
were  not  one  in  the  political  sense  of  the  words ;  or  if  they 
had  no  political  power  as  one  people,  then  the  germ  of  the 
national  oneness  did  not  exist  among  them.  But  this  is 
conceded  by  Mr.  Justice  Story  himself.  "  The  colonies," 
says  he,  "  were  independent  of  each  other  in  respect  to 
their  domestic  concerns. "f  Each  was  independent  of  the 
legislation  of  another,  and  of  all  the  others  combined,  if 
they  had  pleased  to  combine. 

*  Story  on  the  Constitution,  vol.  i,  page  164.  f  Ibid. 


IS    DAVIS    A    TRAITOR?  109 

In  many  respects,  indeed,  the  whole  human  race  may  be 
said  to  be  one.  They  have  a  common  origin,  a  common 
psychology,  a  common  physiology,  and  they  are  all  sub 
jects  of  the  same  great  Ruler  of  the  world.  But  this 
does  not  make  all  men  "one  people"  in  the  political 
sense  of  the  words.  In  like  manner,  those  things  which 
the  colonists  had  in  common,  and  which  are  so  care 
fully  enumerated  by  Mr.  Justice  Story,  do  not  make 
them  one  political  community ;  the  only  sense  in  which 
their  oneness  could  have  any  logical  connexion  with 
his  design.  Nay,  so  palpably  is  this  the  case,  that  he 
fails  to  make  the  impression  on  his  own  mind,  which 
he  seems  so  desirous  to  make  on  that  of  his  readers; 
and  the  hypothesis  that  the  colonies  were  "  one  people," 
is  utterly  dispelled  by  his  own  explicit  admission.  For,  says 
he,  "  Though  the  colonies  had  a  common  origin,  and  owed 
a  common  allegiance,  and  the  inhabitants  of  each  were 
British  subjects,  they  had  no  direct  political  connexion  with, 
each  other.  Each  was  independent  of  all  the  others ;  each, 
in  a  limited  sense,  was  sovereign  within  its  own  territory. 
There  was  neither  allegiance  nor  confederacy  between 
them.  The  Assembly  of  one  province  could  not  make 
laws  for  another,  nor  confer  privileges  which  were  to  be 
enjoyed  or  exercised  in  another,  farther  than  they  could 
be  in  any  independent  foreign  state.  As  colonies,  they 
were  also  excluded  from  all  connexion  with  foreign  states. 
They  were  known  only  as  dependencies,  and  they  followed 
the  fate  of  the  parent  country,  both  in  peace  and  war, 
without  having  assigned  to  them,  in  the  intercourse  or 
diplomacy  of  nations,  any  distinct  or  independent  exist 
ence.  They  did  not  possess  the  power  of  forming  any 
league  or  treaty  among  themselves,  which  would  acquire 
an  obligatory  force,  without  the  assent  of  the  parent  State. 
And  though  their  mutual  wants  and  necessities  often 
induced  them  to  associate  for  common  purposes  of  defence, 
these  confederacies  were  of  a  casual  and  temporary  nature, 


110  IS    DAVIS    A    TRAITOR? 

and  were  allowed  as  an  indulgence,  rather  than  as  a 
right.  They  made  several  efforts  to  procure  the  estab 
lishment  of  some  general  superintending  government  over 
them  all :  but  their  own  differences  of  opinion,  as  well  as 
the  jealousy  of  the  crown,  made  these  efforts  abortive."  * 

It  is  impossible  for  language  to  be  more  precise  and 
explicit.  Hence,  in  whatever  other  respects  the  colonies 
may  have  formed  "  one  people,"  we  are  here  authorized, 
by  the  undisputed  and  the  indisputable  facts  of  history,  to 
consider  them  as  separate  and  independent  of  each  other, 
in  the  political  sense  of  the  terms.  And  this  is  all  our 
argument  needs.  • 

Mr.  Justice  Story,  not  satisfied  with  the  oneness  of  the 
people  of  the  colonies  before  their  separation  from  Great 
Britain,  which  he  has  been  at  so  much  pains  to  establish, 
next  endeavors  to  show,  that  they  were  certainly  moulded 
into  one  nation  by  the  Declaration  of  Independence.  If 
they  were  "one  people"  before,  it  is  difficult  to  conceive 
how  they  were  made  so  by  that  Declaration.  To  that  act, 
says  he,  "  union  was  as  vital,  as  freedom  or  independence."  f 
But  what  sort  of  union?  Did  the  people  unite  and 
become  one  nation,  in  the  sense  that  it  was  a  sovereign 
political  community ;  so  that  the  whole  could  make  a  Con 
stitution  and  laws  for  the  parts  ?  If  not,  then  the  assertion 
misses  the  mark  aimed  at,  and  must  go  for  nothing.  But 
no  one  pretends,  for  a  single  moment,  that  they  became  one 
people  in  any  such  sense  of  the  words.  Mr.  Justice  Story 
himself  admits,  that  such  union  was  temporary,  and  design 
ed  to  perish  with  the  common  danger  which  had  called  it 
into  existence.  "  The  union  thus  formed,"  says  he,  "  grew 
out  of  the  exigencies  of  the  times ;  and  from  its  nature 
and  objects  might  be  deemed  temporory,  extending  only 
to  the  maintenance  of  the  common  liberties  and  independ 
ence  of  the  States,  and  to  terminate  with  the  return  of 

*  Story  on  the  Constitution,  vol.  i,  page  163-164. 
f  Vol.  i.,  Book  xi-.,  chap.  1,  page  200.     Note. 


IS   DAVIS    A    TRAITOR?  Ill 

peace  with  Great  Britain,  and  the  accomplishment  of  the 
ends  of  the  revolutionary  contest."*  Thus  it  is  conceded 
that  they  became  "  one  people,"  not  to  ordain  a  Constitu 
tion  or  to  enact  laws,  but  only  to  resist  a  common  enemy, 
and  to  continue  united  only  during  the  presence  of  the 
common  clanger.  Hence,  this  union  was,  according  to 
Judge  Story's  own  admission,  more  imperfect  and  fragile 
than  that  which,  from  the  operation  of  a  similar  cause,  had 
sprung  up  among  the  States  of  Greece,  the  Swiss  Cantons, 
the  United  Netherlands,  or  the  members  of  the  German 
Diet.  Yet  no  one  has  ever  considered  any  one  of  these 
unions  as  forming  one  nation,  or  people,  as  contradistin 
guished  from  a  federation  of  sovereign  and  independent 
States.  Such  attempts,  indeed,  to  prove  that  the  colonies, 
or  the  States  of  America  were  one  nation,  or  political  com 
munity,  are  simply  desperate.  They  are  scarcely  made, 
before  they  are  overthrown  by  the  hand  that  reared  them. 
But  let  us  admit,  for  the  sake  of  argument,  that  the  col 
onies  formed  one  people  before  their  separation  from  Great 
Britain,  and  that  they  were  again  made  one  people  by  the 
Declaration  of  Independence.  Then  no  one  colony  could 
lawfully  act  without  the  concurrence  of  the  others ;  as  the 
parts  would  not  be  independent  of  the  whole.  Accord 
ingly,  Mr.  Justice  Story  declares,  that  the  "  the  colonies 
did  not  severally  act  for  themselves,  and  proclaim  their 
own  independence."  f  But  it  is  well  known,  that  Virginia 
did  so.  "  Virginia,"  says  Judge  Story,  "  on  the  29th  June, 
1776,  (five  days  before  the  Declaration  of  Independence,) 
declared  the  government  of  the  country  as  formally  exer 
cised  under  the  crown  of  Great  Britain,  totally  dissolved, 
and  proceeded  to  form  a  new  Constitution."  J  Nay,  she 
had  already  formed  a  new  Constitution,  in  pursuance  of 
her  resolution  of  the  15th  of  the  preceding  month,  and  she 
adopted  it  on  the  29th  of  June,  1776.  Yet  Virginia  has 

*  Vol.  i.,  Book  ii.,  chap,  ii.,  page  209. 

f  Vol.  i.,  Book  ii.,  chap,  i.,  page  197.  J  Ibid. 


112  IS    DAVIS    A   TRAITOR? 

never  been  regarded  as  tainted  with  treason,  or  rebellion, 
against  the  people  of  America,  because  she  thus  proclaimed 
her  own  separate  independence,  and  established  her  own 
Constitution.  On  the  contrary,  she  has  ever  been  honored 
by  her  sister  colonies  and  States,  for  this  bold  and  inde 
pendent  act. 

This  is  not  the  only  insuperable  difficulty  in  the  way  of 
the  hypothesis,  that  the  colonies  were  made  one  people 
by  the  Declaration  of  Independence.  For,  if  this  hypo 
thesis  be  adopted,  we  must  believe  that  this  one  people 
were  afterwards  broken  up  into  separate  and  independent 
States  by  an  act  of  Confederation  !  In  the  case  of 
Gibbons  and  Ogden,  *the  Supreme  Court  of  the  United 
States,  say,  (and  the  words  are  quoted  with  approbation 
by  Mr.  Justice  Story,)  f  "  As  preliminary  to  the  very  able 
discussion  of  the  Constitution  which  we  have  heard  from 
the  bar,  and  as  having  some  influence  on  its  construction, 
reference  has  been  made  to  the  situation  of  these  States, 
anterior  to  its  formation.  It  has  been  said,  that  they  were 
sovereign,  were  completely  independent,  and  were  connected 
with  each  other  only  by  a  league.  THIS  is  TRUE."  J  Now,  if 
this  be  true,  as  the  Supreme  Court  of  the  United  States 
affirm,  and  as  Mr.  Justice  Story  admits,  how  were  this  one 
people  broken  up  into  so  many  separate,  "sovereign"  and 
"  completely  independent  "  States  ?  This  must  have  been 
done  by  the  Articles  of  Confederation  ;  since  it  is  only  in 
the  presence  of  these  Articles,  that  this  fine  theory  about 
the  oneness  of  the  American  people  disappears,  and  the 
States  once  more  shine  out  as  free  and  independent  sov 
ereignties.  No  other  cause  can  be  assigned  for  the  change. 

It  is  perfectly  certain,  indeed,  that  if  the  people  of 
America  were  one  nation,  or  political  community,  prior  to 
the  adoption  of  those  Articles,  they  then  became  divided 
into  separate,  distinct,  and  independent  States.  For, 

*  6. 


Wheaton,  page  187.  t.Yol.  i-,  page  323. 

J  Vol.  i.,  Book  ii.,  chap,  iii.,  page  323. 


IS   DAVIS    A   TRAITOR?  113 

according  to  those  Articles,  "each  State  retains  its  sover 
eignty,  freedom,  and  independence."  Each  State  retains! 
This  language  implies,  indeed,  that  each  State  was  free, 
sovereign  and  independent  before  those  Articles  were 
adopted.  But  then  this  is  only  one  of  the  difficulties  in 
the  way  of  the  theory  of  Judge  Story. 

If  they  were  not  free  and  sovereign  States  before,  if,  on 
the  contrary,  they  were  one  people,  or  nation,  or  political 
community,  then  it  were  absurd  to  speak  of  their  union 
as  an  act  of  confederation.  For  it  would,  indeed,  have 
been  an  act  of  separation,  and  not  of  confederation.  It 
would  have  been  the  dividing  of  one  nation  into  separate 
and  sovereign  States,  and  not  the  uniting  of  such  States 
into  one  Confederacy.  This  is  another  of  the  difficulties, 
which  stand  in  the  way  of  the  theory  of  Judge  Story,  and 
of  the  Northern  school  of  politicians. 

Again,  if  one  people  were  thus  divided  into  free,  sover 
eign  and  independent  States,  by  the  Articles  of  Confedera 
tion  ;  then  it  is  very  inaccurate  in  Judge  Story,  to  say,  as 
he  always  does,  that  the  States  granted  the  powers  by 
which  the  Confederacy  was  formed.  He  should,  on  the 
contrary,  have  spoken  only  of  powers  resumed  by  the 
States,  or  restored  to  them  by  the  American  people. 

But  we  may  now  take  leave  of  his  theory  and  all  its 
insuperable  difficulties.  It  is  sufficient  for  my  purpose, 
that  after  the  Articles  of  Confederation  were  agreed  upon, 
as  the  supreme  law,  the  States  were  then  free,  sovereign 
and  independent.  It  is  asserted  by  the  Supreme  Court  of 
the  United  States,  as  well  as  by  Judge  Story  himself,  that 
anterior  to  the  adoption  of  the  Constitution  the  States 
"were  sovereign,  were  completely  independent,  and  were  con 
nected  only  by  a  league"  It  was  in  this  capacity,  it  was  as 
free,  sovereign  and  completely  independent  States,  that 
they  laid  asiBe  the  old,  and  entered  into  the  new,  "Arti 
cles  of  Union,"  as  the  Constitution  is  everywhere  called 
in  the  proceedings  of  the  Convention  of  1787.  TTtis  is 


114  IS   DAVIS    A   TRAITOR? 

conceded.  Hence,  the  situation  of  the  colonies  before  their 
separation  from  the  mother  country,  or  of  the  States 
before  the  adoption  of  the  Articles  of  Confederation,  has 
nothing  to  do  with  our  present  inquiry ;  which  relates  to 
the  character  in  which  the  people,  or  the  peoples  of 
America,  ordained  the  Constitution  of  the  United  States. 
If  any  one  has  a  mind  to  amuse  himself  by  building  up  or 
pulling  down  speculations  or  hypothesis  on  this  subject, 
he  may  do  so  to  his  heart's  content.  It  is  sufficient  for 
every  practical  purpose,  that  when  they  came  to  adopt 
the  new  form  of  government,  each  State  was  a  completely 
free,  sovereign,  and  independent  political  community,  and 
in  that  capacity  acceded  to  the  compact  of  the  Constitu 
tion. 

The  attempt  of  Mr.  Curtis  to  show  that  the  people  of  Amer 
ica  formed  one  nation,  or  political  community. 

Mr.  Curtis,  in  his  extended  and  elaborate  History  of  the 
Constitution  of  the  United  States,  seems  to  vie  with  the 
introductory  sketch  of  Judge  Story,  in  the  establishment 
of  the  foregone  conclusion,  that  it  was  created  by  and 
rests  on,  "the  political  union  of  the  people  of  the  United 
States,  as  distinguished  from  the  States  of  which  they  are 
the  citizens."*  For  this  purpose,  it  is  necessary  to  show, 
in  the  first  place,  that  such  a  political  union  of  the  whole 
people  of  the  country  had  an  existence.  Accordingly,  the 
facts  of  history  are  recast  and  moulded  in  order  to  suit 
this  hypothesis.  If  possible,  the  conflict  between  fact  and 
theory  is,  in  his  work,  even  more  glaring  than  it  is  in  that 
of  Mr.  Justice  Story. 

"The  people  of  the  different  colonies"  were,  says  he, 
"in  several  important  senses,  one  people."^ 

This  is  true.  But  it  is  not  even  pretended,  by  Mr.  Cur 
tis,  that  this  was  a  political  union ;  he  only*says,  that  it 
enabled  them  to  effect  such  a  union.  He  admits,  on  the 

*Vol.  i,  p.  122.  f  Vol.  i,  p.  9. 


IS    DAVIS    A    TRAITOR?  115 

contrary,  in  the  most  explicit  terms,  "that  the  colonies 
had  no  direct  political  connexion  with  each  other  before 
the  Revolution  commenced,  but  that  each  was  a  distinct 
community,  with  its  own  separate  political  organization, 
and  without  any  power  of  legislation  for  any  but  its  own 
inhabitants ;  that,  as  political  communities,  and  upon  the 
principles  of  their  organizations,  they  possessed  no  power 
of  forming  any  union  among  themselves,  for  any  purposes 
whatever,  without  the  sanction  of  the  Crown  or  Parlia 
ment  of  England."* 

"It  is  apparent,"  says  he,  "that  previously  to  the  Decla 
ration  of  Independence,  the  people  of  the  several  colonies 
had  established  a  national  government  of  a  revolutionary 
character,  which  undertook  to  act,  and  did  act,  in  the 
name  and  with  the  general  consent  of  the  inhabitants  of 
the  country."-)-  Thus,  even  previous  to  the  Declaration 
of  Independence,  the  people  of  the  colonies  formed  one 
nation,  and  established  "a  national  government."  A 
nation,  with  a  national  government,  and  yet  dependent 
colonies! 

"This  government,"  says  he,  "was  establishad  by  the 
Union  in  one  body  of  delegates  representing  the  people 
of  each  colony."  That  is,  each  colony,  acknowledged  to  be 
perfectly  and  wholly  independent  of  every  other,  sends 
delegates  to  one  body ;  and  this  body,  whose  duty  it  is  to 
advise  and  recommend  measures  to  the  several  colonies,  is 
"a  national  government!"  Surely,  if  such  an  advisory 
council  may  be  called  a  government  at  all,  it  is  any  thing 
rather  than  national  in  its  character.  It  is,  in  fact,  merely 
the  shadow  of  a  federal  government.  . 

Mr.  Curtis  himself  is  evidently  not  satisfied  with  the 
"  one  nation,"  in  this  stage  of  its  development,  or  purely 
verbal  existence.  Hence,  he  insists,  with  Mr.  Justice 
Story,  that  the  colonies  were  really  made  one  nation  by 
the  Declaration  of  Independence.  "  The  body  by  which 

*Vol.  i,p.  9.  fVol.  i,  p.  39. 


116  IS   DAVIS    A   TRAITOR? 

this  step  was  taken,"  says  he,  "constituted  the  actual  gov 
ernment  of  the  nation,  at  the  time;"*  that  is,  while  they 
were  yet  dependent  colonies!  "It  severed  the  political 
connexion  between  the  people  of  this  country  and  the  peo 
ple  of  England,  and  at  once  erected  the  different  colonies 
into  free  and  independent  States."  j-  Thus,  the  colonies 
formed  "one  nation"  before  their  separation  from  Great 
Britain,  and  afterwards  became  "free  and  independent 
States."  Or,  in  other  words,  the  nation  preceded  the 
States;  an  opinion  for  which  Mr.  Lincoln  has  been  most 
unconscionably  laughed  at.  This  opinion  is  still  more 
explicitly  advanced  by  Mr.  Curtis,  in  another  portion  of 
his  history.  "The  fact,"  says  he,  "that  these  local  or 
State  governments  were  not  formed  until  a  Union  of  the 
people  of  the  different  colonies  for  national  purposes  had 
already  taken  place,  and  until  the  national  power  had 
authorized  and  recommended  their  establishment,  is  of 
great  importance  in  the  Constitutional  history  of  our 
country;  for  it  shows  that  no  colony,  acting  separately 
for  itself,  dissolved  its  own  allegiance  to  the  British  crown, 
but  that  this  allegiance  was  dissolved  by  the  supreme 
authority  of  the  people  of  all  the  colonies,"  &c.,  &c.J 
This  fact,  which  is  deemed  of  so  much  importance  in  the 
constitutional  history  of  this  country,  happens,  as  we 
have  seen,  to  be  a  fiction;  and  a  fiction,  too,  in  direct  con 
flict  with  the  well-known  fact,  that  Virginia  declared  her 
own  separate  independence. 

But  if,  by  the  Declaration  of  Independence,  the  colonies 
became  "  free  and  independent  States,"  how  could  that  act 
have  moulded  them  into  one  sovereign  political  commu 
nity,  or  nation?  This  is  one  of  the  mysteries,  which  I 
am  glad  it  is  not  incumbent  on  me  to  solve.  Was  the 
Declaration  of  Independence  itself  necessarily,  or  ex  vi 
termini,  a  declaration  of  independence,  and,  at  the  same 
time,  one  of  subjection  to  a  higher  authority?  If  we 

*  Vol.  i,  p.  61.  ~  f  Ibid.  J  Vol.  i,  pp.  39,  40. 


IS   DAVIS    A   TRAITOR?  117 

may  adopt  Mr.  Curtis  as  a  guide,  we  must  answer  this 
question  in  the  affirmative.  For,  says  he,  although  the 
colonies  were  thereby  "erected  into  free  and  independent 
States,"  "the  people  of  the  country  became  henceforth 
the  rightful  sovereign  of  the  country;  they  became  uni 
ted  in  a  national  corporate  capacity,  as  one  people;  they 
could  thereafter  enter  into  treaties  and  contract  alliances 
with  foreign  nations,  could  levy  war  and  conclude  peace, 
and  do  all  other  acts  pertaining  to  the  exercise  of  a  national 
sovereignty."*  If  so,  then  of  course  they  could  ordain 
Constitutions  and  enact  laws;  they  could  set  up,  or  pull 
down,  or  modify  the  parts,  called  States,  as  if  they  were 
counties,  or  mere  districts  of  people.  For  such  is  the 
power  of  one  sovereign  State,  or  nation,  over  its  various 
members/  ^?ci*~^/s  ^ 

But,  unfortunately  for  this  bold  assertion,  Mr.  Curtis 
himself  tells  us,  on  the  very  next  page  of  his  work,  that 
"  on  the  same  day  on  which  the  committee  for  preparing 
the  Declaration  of  Independence  was  appointed,  another 
committee,  consisting  of  a  member  from  each  colony,  was 
directed  to  prepare  and  digest  the  form  of  a  confederation  to 
be  entered  into  between  these  colonies,"  that  is,  after  they 
should  become  free  and  independent  States.  "  This  com 
mittee,  he  continues,  "reported  a  draft  of  Articles  of  Con 
federation  on  the  12th  of  July,  &c."  These  Articles  were 
discussed,  postponed,  resumed,  amended,  and,  finally, 
adopted. 

Now  whence  resulted  the  powers  conferred  by  these 
Articles  of  Confederation?  Were  they  not  granted  by 
the  "free  and  independent  States"?  Most  assuredly  they 
were ;  no  one  has  ever  had  the  hardihood  to  deny  so  plain 
a  fact,  except  by  implication.  But  if  all  the  powers  of 
the  new  "national  government,"  as  it  is  called  by  Mr. 
Curtis,  were  granted  by  "free  and  independent  States," 
each  acting  for  itself,  as  every  one  acknowledges  it  to 

*  Vol.  i,  p.  52. 


118  IS    DAVIS    A    TRAITOR? 

have  done;  then  for  what  conceivable  purpose  has  he  con 
jured  up  the  phantom  of  a  pre-existing  national  sover 
eignty  of  the  whole  people  of  the  country? 

It  is  certain,  that  this  phantom  has  been  completely 
laid  by  Mr.  Curtis  himself.  The  whole  elaborate  illusion, 
which  it  has  cost  him  so  much  pains  to  get  up,  is  thus 
dispelled  by  a  plain,  simple  and  unpremeditated  state 
ment  of  unquestionable  facts,  by  the  author  himself. 
"The  parties  to  this  instrument,"  says  he,  referring  to  the 
Articles  of  Confederation,  "  were  free,  sovereign  and  inde 
pendent  political  communities, — each  possessing  within  itself 
all  the  powers  of  legislation  and  government  over  its  own 
citizens,  which  .  any  political  .society  can  possess.  But,  by 
this  instrument,  these  several  States  became  united  for  cer 
tain  purposes."  *  Surely,  all  this  must  have  been  absent 
from  the  mind  of  Mr.  Curtis,  when  he  spoke  of  the  peo 
ple  of  the  several  States  as  having  been  previously 
merged  into  one  absolutely  sovereign  political  community. 
But  it  seems  to  be  requiring  too  much  to  expect  a  Massa 
chusetts  politician  to  remember  any  thing  he  may  have 
said  on  any  preceding  page  of  his  work. 

Nor  is  this  all.  For  it  is  also  conceded  that  the  States, 
which  were  "free,  sovereign  and  independent  political 
communities"  before  they  adopted  the  Articles  of  Confed 
eration,  retained  the  same  prerogatives,  or  attributes, 
after  that  event.  "The  Articles,"  says  he,  " declared,— as 
would  indeed  be  implied,  in  such  circumstances,  ivithout  any 
express  declaration, — that  each  State  retained  its  sovereign 
ty,  freedom,  and  independence."!  It  was,  then,  in  this 
condition  of  "free,  sovereign,  and  independent  political 
communities,"  that  the  States  passed  from  the  old  to  the 
new  Articles  of  union,  or  severally  agreed  to  the  compact 
of  the  Constitution.  Why,  then,  conjure  up  shadows  and 
phantoms  of  a  national,  unity  only  to  dispel  them  ?  The 
cause  of  secession  only  demands  the  fact,  that  the  States, 

*  Vol.  i,  p.  143. 


IS    DAVIS    A    TRAITOR?  119 

as  "free,  sovereign,  and  independent  political  communi 
ties,"  formed  and  entered  into  the  new  "Articles  of 
Union;"  and  this  fact  is  conceded  both  by  Story  and 
Curtis. 

The  use  of  the  term  people. 

Much  of  the  inconsistency  and  contradiction  in  the 
views  above  examined,  is  due  to  the  ambiguities  of  the 
.workpeople,  and  the  utter  confusion  of  its  loose,  floating 
significations,  with  its  technical  or  scientific  sense.  We 
sometimes  pronounce  a  people  one,  because  they  have  a 
common  origin,  or  a  common  language,  or  a  common 
religion,  or  even  because  they  inhabit  the  same  portion 
of  the  globe.  Thus,  we  speak  of  "the  people  of  Europe," 
or  "the  people  of  America,"  without  intending  to  convey 
the  idea  that  they  are  a  people  in  the  political  sense  of  the 
term.  When  we  say,  however,  that  "  the  people  are  sov 
ereign,"  we  use  the  word  in  a  more  restricted  sense.  We 
then  speak  of  the  people  in  the  political  or  technical 
sense  of  the  term. 

This  includes  only  the  qualified  voters  of  the  commu 
nity,  or  those  by  whom  Constitutions  may  be  ordained, 
and  re-modelled.  For  no  other  persons  participate  in  the 
exercise  of  the  sovereign  power.  Women  and  minors  are 
excluded,  as  well  as  some  other  classes,  even  in  our  Amer 
ican  States.  It  is  in  this  limited  sense  of  the  word,  that 
the  people  are  said  to  make  compacts,  or  Constitutions  and 
laws,  either  by  themselves  or  by  their  agents. 

If  Mr.  Justice  Story  had  borne  this  in  mind,  he  might 
have  saved  himself  from  all  his  criticisms  on  the  doctrine 
of  a  social  contract  based  on  the  ground  that  "  infants, 
minors,  married  women,  persons  insane,  and  many  others,"* 
take  no  part  in  the. formation  of  civil  societies,  or  in  the 
creation  of  constitutions  and  governments.  No  one 
includes  such  persons  in  the  idea  of  a  people,  when  these 

*  Vol.  i.,  Book  iii.,  chap.  Hi.,  page  296. 


120  IS   DAVIS   A    TRAITOR? 

are  said  to  be  sovereign.  Hence,  his  "limitations  and 
qualifications  "  of  the  doctrine  in  question,  have  exclusively 
arisen  from  his  own  misapprehension.  Something  more 
than  a  mere  natural  person  is  necessary  to  constitute  one 
of  "  the  people,"  one  of  the  multitudinous  sovereignty  of 
an  American  State.  "The  idea  of  a  people,"  says  Burke, 
evidently  using  the  term  in  its  restricted  or  political  sense, 
"is  the  idea  of  a  corporation;  it  is  wholly  artificial,  and 
made,  like  all  other  legal  fictions,  by  common  agreement."*- 
That  is,  says  he,  "  in  a  rude  state  of  nature,  there  is  no 
such  thing  as  one  people.  A  number  of  men,  in  themselves, 
can  have  no  collective  capacity."  Or,  in  other  words,  some 
thing  more  than  a  number  of  men  is  necessary  to  make  a 
people,  or  State.  It  must  be  agreed  and  settled,  as  to 
who  shall  take  part  in  the  exercise  of  political  power,  ere 
constitutions  and  laws  may  be  ordained  or  remodelled  by 
them. 

But  in  vain  did  Burke,  and  Hobbes,  and  other  writers 
on  the  philosophy  of  politics,  endeavor  to  "  fix,  with  some 
degree  of  distinctness,  an  idea  of  what  we  mean  when  we 
say,  the  PEOPLE."  f  Their  labors  seem  to  have  been  lost 
upon  the  politicians  of  the  Massachusetts  school ;  and,  in 
some  instances,  at  least,  they  appear  to  have  only  cast 
their  pearls  before  swine.  For  one  of  the  great  lights  of 
that  school  kindles  into  a  blaze  of  fiery  indignation  against 
Mr.  Burke,  for  simply  advancing  the  incontestable  truth, 
that  what  we  call  a  PEOPLE  is,  in  the  political  sense  of  the 
word,  the  result  of  an  agreement  or  mutual  understanding 
of  a  community  of  persons.  "O,  that  mine  enemy  had 
said  it ! "  the  admirers  of  Mr.  Burke  may  well  exclaim," 
cries  this  great  light  of  Massachusetts.  "O,  that  some 
scoffing  Yoltaire,  some  impious  Rousseau  had  uttered  it ! 
Had  uttered  it?  .  Rousseau  did  utter  the  same  thing,  &c."| 
This  is  true.  For  widely  as  Edmund  Burke  and  Eousseau 

*  Appeal  from  the  New  to  the  Old  Whigs.  f  Ibid. 

t  Everett's  Orations  and  Speeches,  vol.  i.,  page  122. 


IS    DAVIS    A    TRAITOR?  121 

differed  on  most  points,  they  agreed  in  this,  that  it  is  not 
nature,  but  art,  which  determines  the  question,  as  to  who 
shall  participate  in  the  exercise  of  political  power,  or  con 
stitute  a  PEOPLE,  in  the  political  sense  of  the  word.  Even 
"  the  impious  Bousseau"  is  sometimes  right,  and  nearly,  if 
not  quite,  always  so  when  he  agrees  with  Edmund  Burke. 

In  his  attempt  to  show  that  the  Constitution  was 
adopted  by  the  people,  and  not  by  the  States,  Mr.  Justice 
Story  deceives  himself  by  means  of  the  ambiguities  of  the 
term  people,  and  repeatedly  contradicts  his  own  positions. 
"  The  States  never,  in  fact,"  says  he,  "  did,  in  their  polit 
ical  capacity,  as  contradistinguished  from  the  people 
thereof,  ratify  the  Constitution."*  This  is  very  true,  if 
by  States  in  their  political  capacity,  he  means,  as  he  seems 
to  do,  the  State  governments.  But  this  is  not  to  the  pur 
pose.  Every  one  admits,  that  the  Constitution  was  ratified, 
not  by  the  Governments,  but  by  the  people  of  the  States. 
Nor  does  any  one  deny,  that  the  term  State  is  sometimes 
used  to  signify  the  government  of  a  State.  Thus,  we 
often  say,  that  the  State  does  so  and  so,  when  the  thing  is 
done  by  its  Government.  But  the  question  is,  may  we  not 
say,  that  the  Constitution  was  ratified  by  the  States,  as 
well  as  by  the  people. of  the  States?  Or,  in  other  words, 
are  not  the  terms  State  and  People  properly  used  as  equiv 
alent  expressions  ?  These  words  were,  as  we  have  already 
most  abundantly  seen,  habitually  used  as  convertible  terms 
by  the  Convention  of  1787. 

We  may  truly  say,  indeed,  with  Judge  Story,  that  the 
Constitution  was  not  ratified  by  the  States,  as  contradis 
tinguished  from  the  people;  because  it  is  not  very  easy  to 
distinguish  a  thing  from  itself.  In  assuming  this  position, 
Mr.  Justice  Story  forgets  what  he  had  said  in  the  prece 
ding  Book  of  his  Commentaries,  namely,  "the  State  and 
the  people  of  the  State,  are  equivalent  expressions."f 
"Nay,  the  State,"  he  again  says,  "by  which  we  mean  the 

"  *VoLi.,  page  330.  f  Vol.  i,  Book  ii,  p.  198. 

7 


122  IS    DAVIS   A   TRAITOR? 

people  composing  the  State,  may  divide  its  sovereign 
powers  among  various  functionaries,  &c."*  Here  the  term 
people  is  clearly  used  to  include  only  the  qualified  voters, 
or  those  who  share  the  sovereign  power;  and,  in  this 
sense,  they  are  called  "the  State."  It  is  precisely  in  this 
sense,  that  the  Constitution  was  ratified  by  the  peoples, 
or  the  States.  We  may,  and  indeed  should,  distinguish 
between  the  meanings  of  the  term  State,  when  it  is  figura 
tively  used  to  signify  the  government  of  a  State,  and 
when  it  is  used  to  signify  the  State  itself.  But  we  shall 
never  distinguish  the  people  of  a  State  from  the  State 
itself,  until  we  can  find  a  State  which  is  not  composed  of 
people. 

But  the  attempt  is  made  to  show,  that,  in  adopting  the 
Constitution,  the  States  acted  as  mere  districts  of  people, 
and  not  in  their  sovereign  political  capacity  .f  But  if  this 
were  so,  then  the  different  districts  would  have  been  con 
sidered  together  in  making  up  the  final  result,  and  the 
majority  of  the  one  grand,  national  whole  would  have 
ordained  the  Constitution.  The  fact,  however,  the  unde- 
nied  and  the  undeniable  fact,  is  quite  otherwise.  Each 
State,  with  all  its  own  laws,  and  institutions  and  govern 
ment,  either  went  in,  or  remained  out,  at  its  own  sovereign 
will  and  pleasure.  In  the  words  of  the  Federalist,  it  was 
"  only  to  be  bound  by  its  own  voluntary  act."  No  other 
State,  nor  all  other  States  combined,  nor  the  whole  people 
of  America,  had  the  least  authority  to  control  its  decision- 
This  was  an  absolutely  free,  sovereign  and  independent 
act  of  each  State.  It  may  be  doubted,  indeed,  if  there  was 
ever  a  more  superficial  gloss,  or  a  more  pitiful  subterfuge, 
than  the  assertion  of  Judge  Story,  that  the  States  adopted 
the  Constitution,  not  as  States,  but  only  "  as  districts  of 
people "  composing  one  great  State  or  nation.  It  is  at 
war  with  facts ;  it  is  at  war  with  his  own  repeated  admis 
sions  ;  and  it  is  at  war  with  the  plainest  dictates  of  truth, 

*Ibid.  p.  194.      f  Story's  Com.  on  the  Constitution,  vol.  1,  p.  330- 


IS    DAVIS    A    TRAITOR?  123 

as  well  as  with  the  unanswerable  arguments  of  the  Fed 
eralist.  Sad,  indeed,  must  have  been  the  condition  to 
which  the  great  sophist  was  reduced,  when  he  could  stoop 
to  so  palpable  a  gloss  on  one  of  the  plainest  facts  in  the 
history  of  the  Constitution  I 

4 

CONCLUSION. 

Mr.  Justice  Story  has,  I  am  aware,  as  well  as  Mr.  Web 
ster,  laid  great  stress  on  the  fact,  that  the  Constitution 
addresses  the  language  of  authority  to  the  States.  "  The 
language  of  a  compact  is,"  says  he,  "  I  will,  or  will  not  do 
this;  that  of  a  law  is,  thou  shalt,  or  shalt  not  do  it."* 
This  is  what  the  act  of  entering  into  a  compact  signifies, 
but  it  is  not  usually  the  language  of  the  instrument  itself. 
On  the  contrary,  the  Articles  of  Confederation,  which  are 
universally  admitted  to  form  a  compact,  use  precisely  the 
same  style  as  the  Constitution.  Both  say  what  shall,  an$ 
what  shall  not,  be  done  by  the  States.  Precisely  the  same 
style  is  also  employed  in  the  formation  of  compacts  or 
treaties  between  wholly  separate  and  independent  powers. 
Kay,  in  the  most  ordinary  articles  of  co-partnership,  it  is 
usual  to  say,  in  the  same  manner,  what  shall j  and  what 
shall  not,  be  done  by  the  parties  thereto.  Yet  all  such 
instruments  rest  upon  the  agreement  of  the  parties,  and 
derive  their  binding  force  from  their  voluntary  act. 

There  is  a  very  simple  law  of  language,  which  seems  to 
have  escaped  the  attention  of  these  great  expounders  of 
the  Constitution.  The  language  of  written  contracts  usu 
ally  speaks  of  the  parties  in  the  third  person,  and  not  for 
them  in  the  first  person.  Hence,  they  necessarily  assume 
the  imperative  style;  laying  down  what  shall,  and  not  say 
ing  what  will,  be  done  by  them.  It  would  have  been 
ridiculous,  indeed,  if  the  Constitution  had  said,  No  State 
will  emit  bills  of  credit,  or  coin  money,  and  so  forth,  instead 
of  saying,  as  it  does,  that  no  State  shall  do  such  acts. 

*Vol.  i,  p.  808. 


124  IS   DAVIS   A   TRAITOR? 

Like  other  written  contracts,  it  says  shall,  of  course,  be 
cause  it  speaks  of  the  parties  in  the  third  person,  and 
lays  down  the  obligations  imposed  upon  them  by  their 
own  consent.  This  is  a  very  simple  law  of  language. 
But  that  is  no  reason  why  it  should  be  overlooked  by  the 
great  lights  of  jurisprudence. 

"In  compacts,"  says  Judge  Story,  "we  ourselves  deter- 
termine  and  promise,  what  shall  be  done,  before  we  are 
obliged  to  do  it."  No  words  could  more  admirably  suit 
our  purpose,  or  the  facts  of  the  case.  For  each  State 
agreed  to  the  compact  of  the  Constitution,  which  pre 
scribes  "what  shall  be  done,"  before  it  was  bound  by  it. 
That  "no  State  shall  emit  bills  of  credit,"  and  so  forth,  is 
precisely  the  style  which,  according  to  Judge  Story  him 
self,  as  well  as  according  to  all  usage,  would  be  employed 
in  articles  of  agreement  between  the  States;  and  hence,  to 
argue  for  the  use  of  shatt,  instead  of  will,  that  the  Consti 
tution  addresses  the  language  of  authority  from  the  people 
of  America  to  the  States,  is  simply  ridiculous.  "  In  com 
pacts;"  says  Story,  "we  ourselves  determine  and  promise 
what  shall  be  done,  before  we  are  obliged  to  do  it."  And 
yet,  in  the  face  of  this  obvious  fact,  he  argues  from  the  use 
of  shall  in  the  Constitution,  that  it  is  not  what  the  State 
"  determined  and  promised,"  but  what  they  were  com 
manded  to  do!  that  it  is  not,  and  cannot  be  a  compact 
between  the  States  at  all  I 

A  and  B  enter  into  articles  of  agreement.  These  arti 
cles,  according  to  good  usage,  say  what  A  shall  do, 
and  what  B  shall  do.  What  shall  we  say,  then,  of  these 
articles?  Shall  we  say,  that  they  do  not  form  an  agree 
ment,  or  contract  at  all?  Shall  we  say,  that  A  commands 
B,  or  "addresses  to  him  the  language  of  authority,"  as  a 
law-giver  speaks  to  a  subject?  If  so,  then  B  also  com 
mands  A,  and  each  is  evidently  the  master  of  the  other! 
Precisely  such  is  the  profound  logic  of  Mr.  Justice  Story ! 


CHAPTEE    XYI. 

Arguments  in  favor  of  the  Right  of  Secession. 

IN  the  preceding  chapters,  it  has,  I  think,  been  clearly 
demonstrated,  that  the  Constitution  of  the  United  States 
was  a  compact  to  which  the  several  States  were  the  par 
ties.  This,  as  we  have  seen,  was  most  explicitly  the  doc 
trine  maintained  by  the  fathers  of  the  Constitution,  and 
was  unequivocally  set  forth  by  the  Federalist  in  submit 
ting  that  instrument  to  the  people,  and  that  it  is  confirmed 
by  all  the  historical  records  of  the  country.  If  any  propo 
sition,  indeed,  respecting  the  Constitution  can  be  consid 
ered  as  unanswerably  established,  it  is  the  doctrine  of  the 
Federalist,  that  the  act  by  which  it  was  ordained  was  "  not 
a  national,  but  &  federal  act;"  having  been  ratified  "by 
the  people  of  America,  not  •  as  individuals  composing  one 
nation,  but  as  composing  the  distinct  and  independent  States 
to  which  they  belong  ;"*  that  the  Constitution,  "the  com 
pact,"  was  established  by  "the  States  regarded  as  distinct 
and  independent  sovereigns."  f  It  is,  then,  on  this  clear, 
broad,  immutable  foundation,  that  the  argument  in  favor 
of  secession  rests. 

Argument  in  favor  of  Secession  from  the  doctrine  of  re 
served  rights. 

It  is  frequently  asked,  by  the  opponents  of  secession, 
where  is  the  right  of  a  State  to  withdraw  from  the  Union 
set  forth  or  contained  in  the  Constitution?  But  this 

*  Federalist,  No.  XXXIX.  f  Ibid,  No.  XL. 


126  IS    DAVIS    A    TRAITOR? 

question  betrays  a  gross  ignorance  with  respect  to  the 
origin  of  State  rights.  These  rights  are  not  derived  from 
the  Constitution  at  all ;  on  the  contrary,  all  the  rights, 
powers,  or  authorities  of  the  Constitution  are  derived 
from  the  States.  And  all  the  rights  not  delegated  to  the 
Federal  Government  by  the  States,  are  reserved  to  the 
States  themselves, — the  original  fountains  of  all  the  pow 
ers  of  "the  Constitution  of  the  United  States."  This  is 
the  doctrine  set  forth  by  the  "Federalist"  in  submitting 
that  instrument  or  Constitution  to  the  people. 

"The  principles  established  in  a  former  paper,"  says  the 
Federalist,  "teach  us,  that  the  States  will  retain  all  pre 
existing  authorities  which  may  not  be  exclusively  delega 
ted  to  the  federal  head."  *  In  the  former  paper  here 
referred  to,  it  is  said:  "All  authorities,  of  which  the 
States  are  not  explicitly  divested  in  favor  of  the  Union, 
remain  with  them  in  full  vigor '."f  In  the  ratifying  Conven 
tion  of  Virginia,  the  same  doctrine  is  set  forth  as  well 
known  to  every  one  at  that  day,  by  John  Marshall,  who 
was  afterward  the  illustrious  Chief  Justice  of  the  Supreme 
Court  of  the  United  States.  "The  state  governments," 
says  he,  "'did  not  derive  their  powers  from  the  general 
government.  But  each  government  derived  its  powers 
from  the  people,  and  each  was  to  act  according  to  the 
powers  given  it.  Would  any  gentleman  deny  this?  He 
demanded  if  powers  not  given,  were  retained  by  implica 
tion  ?  Could  any  man  say,  no?  Could  any  man  say,  that 
this  power  was  not  retained  by  the  States,  since  it  was 
not  given  away?  For,  says  he,  does  not  a  power  remain 
till  it  is  given  away?"  f 

Neither  Marshall  nor  Hamilton,  the  author  of  the  num 
bers  of  the  Federalist  just  quoted,  was  ever  suspected  of  a 
desire  to  lessen  the  authority  of  the  Federal  Union,  or  to 
magnify  that  of  the  States.  Yet,  as  we  have  seen,  both 

*  Federalist  No.  LXXXII.  f  Federalist  No.  XXXII. 

J  Elliot's  Debates,  Vol.  3.  p.  389. 


IS   DAVIS   A   TRAITOR?  127 

of  them  assume  as  an  undeniable  principle,  that  every 
power  which  is  not  delegated  by  the  States  to  the  Federal 
Union,  is  retained  by  them  in  full  vigor.  This  principle 
results,  indeed,  from  the  fact  that  all  the  powers  of  the 
Federal  Government  emanate  from  the  peoples  of  the  sev 
eral  States.  The  question  of  Marshall  "  does  not  a  power 
remain  till  it  was  given  away?"  admits  of  but  one  answer. 
For  if  a  principal  delegates  power  to  an  agent  of  any 
kind,  or  for  any  purpose;  the  agent  only  possesses  the 
delegated  powers,  and  all  others  remain  with  the  princi 
pal.  Thus,  according  to  the  very  nature  of  things,  as 
well  as  according  to  the  high  authority  of  Hamilton  and 
Marshall;  the  States  retained  all  the  powers  which  they 
had  not  delegated  to  the  Federal  Union. 

But  however  plain  this  principle,  or  however  fully  ad 
mitted  by  the  advocates  of  federal  authority;  the  States 
still  insisted  that  it  should  be  expressly  incorporated  in 
the  written  language  of  the  Constitution.  Hence  Massa 
chusetts,  having  ratified  the  Constitution,  used  the  follow 
ing  language:  "As  it  is  the  opinion  of  this  Convention, 
that  certain  amendments  and  alterations  in  said  Constitu 
tion  would  remove  the  fears  and  quiet  the  apprehensions 
of  many  of  the  good  people  of  the  commonwealth,  and 
more  effectually  guard  against  an  undue  administration 
of  the  Federal  Government,  the  Convention  do  therefore 
recommend  that  the  following  alterations  and  provisions 
be  introduced  into  said  Constitution: 

"  First,  That  it  be  explicitly  declared  that  all  powers 
not  expressly  delegated  by  the  aforesaid  Constitution,  are 
reserved  to  the  several  States,  to  be  by  them  exercised."  * 

In  like  manner,  and  for  a  like  reason,  Virginia  recom 
mended  the  following  "Amendment  to  the  Constitution. 
1st.  That  each  State  in  the  Union  shall  respectively 
retain  every  power,  jurisdiction,  and  right,  which  is  not 
by  this  Constitution  delegated  to  the  Congress  of  the 

*  Elliot's  Debates,  Vol.  II.  p.  180. 


128  IS    DAVIS    A    TRAITOR? 

United  States,  or  to  the  departments  of  the  Federal  Gov 
ernment."*  North  Carolina  urged  the  same  amendment 
to  the  Constitution,  and  in  precisely  the  same  words  as 
those  employed  by  Virginia,  f  In  the  first  amendment 
proposed  by  Pennsylvania,  we  find  the  following  words: 
"All  the  rights  of  sovereignty,  which  are  not  by  the  said 
Constitution  expressly  and  plainly  vested  in  the  Congress, 
shall  be  deemed  to  remain  with,  and  shall  be  exercised  by  the 
several  States  in  the  Union."  J 

These  recommendations,  and  others  to  the  same  effect, 
secured  the  tenth  amendment  to  the  Constitution  of  the 
United  States;  which  is  in  these  words:  "The  powers 
not  delegated  to  the  United  States  by  the  Constitution, 
nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States, 
or  to  the  people."  If  reason,  if  authority,  if  history,  if  the 
words  of  the  Constitution  itself,  can  establish  any  thing; 
then  may  we  regard  it  as  definitively  and  forever  settled, 
that  every  power,  right,  or  authority  Avhich  is  not  delega 
ted  to  the  Federal  Union,  is  reserved  to  the  States,  or  to 
the  people  of  the  States. 

I  ask,  then,  where  is  this  great,  inherent  right  of  a 
State  to  resume  the  powers  it  has  delegated,  surrendered 
to  the  Federal  Union?  Adhere  has  this  peerless  right  of 
sovereignty  been  ceded,  surrendered,  or  given  away? 
The  people  may  rage,  and  the  politicians  imagine  a  vain 
thing;  but  I  appeal  to  the  great  charter  of  American 
rights  and  liberties.  Where,  then,  in  the  Constitution  of 
the  United  States,  is  the  sacred  and  inviolable  right  of  a 
sovereign  State  to  resume  the  powers  it  has  delegated  to 
its  agents,  given  away  or  surrendered?  When  the  States 
entered  into  "the  compact  of  the  Constitution,"  they  did 
so,  as  it  is  conceded  both  by  Story  and  Curtis,  at  the 
moment  they  were  "free,  sovereign,  and  independent 
States."  Where,  then,  in  that  compact,  did  they  delegate, 
surrender,  or  give  away,  the  sacred  right  to  resume  the 

*  Ibid.  Vol.  iii,  p.  594.  f  Ibid,  Vol.  iv,  p.  240.  J  Ibid,  Vol.  ii,  p.  503. 


IS    DAVIS    A    TRAITOR?  129 

powers  which  they  delegated  to  their  agent,  the  Federal 
Government;  or,  in  other  words,  the  right  to  secede  from 
the  Union?  Let  the  place  in  which  this  right,  this  great 
est  of  all  the  rights  of  sovereignty,  has  been  given  away 
to  the  Federal  Union,  be  pointed  out  in  the  Constitution; 
or  it  must  be  conceded,  that  it  remained  with  the  States. 
Let  it  be  shown,  where  "the  States  are  explicitly  divest 
ed"  of  this  right  "in  favor  of  the  Union;"  or  it  must  be 
admitted,  that  it  "remained  with  them  in  full  vigor."* 
Ignorance,  or  passion,  or  patriotism  may  "veil  this  right;" 
but,  nevertheless,  the  question  is,  where  is  this  right  given 
away  in  the  compact  of  the  Constitution?  If  it  be  not 
given  away  there;  it  still  exists  with  the  States  in  all  the 
plenitude  of  its  power.  The  stars  do  not  cease  to  shine, 
or  to  exist,  because  they  are  concealed  frem  view  by 
exhalations  from  the  earth,  or  by  the  blaze  of  noon. 

Argument  from  the  Sovereignty  of  the  States. 

Perhaps  no  subject  has  ever  been  considered  with  less 
steadiness  of  mind,  or  clearness  of  analysis,  than  "the 
sovereignty  of  the  States."  except  "the  sovereignty  of 
the  United  States."  The  powers  of  the  Federal  Govern 
ment  are  enumerated  by  one  party,  in  order  to  show  that 
it  is  sovereign  or  supreme;  while  the  opposite  party  at 
tempts  to  prove  the  sovereignty  of  the  States,  by  dwell 
ing  on  the  powers  which  belong  to  their  governments. 
But  all  this  is  nothing  whatever  to  the  purpose.  It 
merely  deals  with  the  branches,  not  with  the  roots,  of  the 
great  subject  under  discussion ;  and  how  long  soever  these 
branches  may  be  beaten,  it  will  only  make  confusion  the 
worse  confounded.  In  the  contest  about  the  significance 
of  the  particular  powers  of  the  Federal  and  of  the  State 
Governments,  the  real  principle  on  which  the  whole  con 
troversy  hinges  is  overlooked,  and  the  subject  in  dispute 

*  Federalist,  No.  xxxii. 

7* 


130  IS    DAVIS    A    TRAITOR? 

is  darkened  by  words  without  knowledge,  and  buried  far 
under  floods  of  logomacy. 

Mr.  Webster,  for  example,  thus  demolishes  the  doctrine 
of  State  sovereignty:  "However  men  may  think  this 
ought  to  be,  the  fact  is,  that  the  people  of  the  United 
States  have  chosen  to  impose  control  on  State  sovereign 
ties.  There  are  those,  doubtless,  who  wish  they  had  been 
left  without  restraint;  but  tire  Constitution  has  ordered 
the  matter  diiferently.  To  make  wTar,  for  instance,  is  an 
exercise  of  sovereignty,  but  the  Constitution  declares  that 
no  State  shall  declare  war.  To  coin  money  is  another  act 
of  sovereign  power;  but  no  State  is  at  liberty  to  coin 
money.  Again,  the  Constitution  says  that  no  sovereign 
State  shall  be  so  sovereign  as  to  make  a  treaty.  These 
prohibitions,  it  must  be  confessed,  are  a  control  on  the 
State  sovereignty  of  South  Carolina,  as  well  as  of  the 
other  States,  which  does  not  arise  "from  her  feelings  of 
honorable  justice,"  The  opinion  referred  to,  therefore,  is 
in  defiance  of  the  plainest  provisions  of  the  Constitu 
tion.*"  Why,  then,  did  he  not  wind  up  his  unanswerable 
logic  with  a  quod  erat  demonstrandum? 

The  truth  is,  that  the  whole  thing,  from  beginning  to 
end,  is  a  miserable  sophism.  His  premises  are  false,  and 
his  conclusion,  therefore,  falls  to  the  ground.  The  fact 
is,  that  the  people  of  the  United  States  imposed  no  con 
trol  whatever  op  £he  {States,  and  had  no  power  to  do  so. 
On  the  contrary,  each  §tate,  fpr  tjje  sake  of  union,  agreed 
that  'it  would  abstain  frop  the  exerpise  of  the  right  to 
wage  war,  to  coin  meney,  and  to  make  treaties.  She  del 
egated  these  high  powers  to  tjie  government  of  the  Fed 
eral  Ujiion.  She  entered  into  tfie  compact  of  tjie  Constij 
tution,  as  we  have  seen}  in  her  character  pf  "a  .distinct 
and  independent  sovereign,"  and  was,  therefore,  ^boun.4 
only  by  her  own  voluntary  act."f  All  the  powers  of  the 
Constitution  were  delegated,  and  all  its  obligations  assu- 

*  Webster's  Works,  vol.  iii,  p.  322.  ^Federalist. 


IS   DAVIS    A    TRAITOR?  131 

med,  by  the  free  act  of  each  sovereign  State.  All  the  con 
trol  to  which  she  was  liable  in  the  Union  vr&a  self -imposed; 
and  not  one  particle  of  it  was  laid  upon  her  by  any  au 
thority  but  her  own.  The  act,  indeed,  by  which  she  en 
tered  into  the  compact  of  the  Constitution,  was  an  exer 
cise,  not  an  abridgement,  of  her  sovereign  power.  If 
she  could  not  enter  into  such  a  compact,  she  would  be 
less  than  sovereign. 

It  is  supposed  by  some,  certainly  by  none  who  have 
reflected  on  the  subject,-  that  if  a  State  delegates  a  portion 
of  her  powers,  or  agrees'  to  abstain  from  the  exercise  of 
them ;  her  sovereignty  is  thereby  limited,  or  abridged. 
To  all  such  I  would  commend  the  words  of  Vattel :  "  Sev 
eral  sovereign  and  independent  States,"  says  he,  "may 
unite  themselves  together  by  a  perpetual  confederacy, 
without  ceasing  to  be,  each  individually,  a  perfect  State. 
They  will  together  constitute  a  federal  republic :  their 
joint  deliberations  will  not  impair  the  sovereignty  of  each 
member,  though  tjiey  may,  in  certain  respects,  put  some  restraint 
on  the  exercise  of  it,  in  virtue  of  voluntary  engagements."* 
Every  one  should  be  perfectly  familiar  with  this  principle 
of  law.  It  has  been  clearly  recognized  and  embodied  in 
the  legislation  of  this  country.  In  the  thirteenth  Arti 
cle  of  the  old  Confederation,  for  example,  it  is  express 
ly  declared  that  " the  Unioj-i  shall  ,b<e  perpetual;"  and 
yet,  in  the  second  Article,  it  is  said  t,hat  "each  State 
retains  its  sovereignty,  freedom,  and  indepen.de.nce."  Thus 
although  the  States,  in  and  by  those  Articles,  delegated 
many  sovereign  powers  to  the  Federal  Government;  this 
in  conformity  with  the  principle  laid  down  by  Vattel,  did 
"not  impair  the  sovereignty  of  each  member."  But  since 
the  new  Constitution,  or  Articles  of  Union,  contained  no 
clause  declaring  it  perpetual,  or  assigning  any  period  for 
its  duration;  how  much  more  clearly  did  each  State  in  the 
"more  perfect  Union"  retain  its  sovereignty  unimpaired] 

*  Vattel' s  Law  of  Nations,  p.  3. 


132  IS   DAVIS   A   TRAITOR? 

For,  in  such  case,  it  is  conceded,  as  we  have  repeatedly 
seen,  by  the  great  lights  of  American  jurisprudence,  that 
a  State  may  secede  at  pleasure,  or  resume  the  powers  she 
may  have  delegated  to  the  Federal  Government, 

Indeed,  if  a  State  could  not  thus  delegate  her  sovereign 
powers,  she  would  cease  to  be  sovereign.  She  would 
resemble  a  minor,  who  is  incapable  of  entering  into  con 
tracts,  The  State,  or  the  people  themselves,  cannot  exer 
cise  sovereign  powers  in  person ;  and  hence,  if  she  could 
not  delegate  them  to  her  agents,  representatives,  substi 
tutes,  or  servants;  her  sovereignty  would  be  a  useless 
burden  to  her,  Thus,  the  very  circumstance  which  is 
supposed,  by  superficial  thinkers,  to  limit  and  control  the 
sovereignty  of  a  State,  is  indispensably  necessary  to  the 
perfection  of  that  sovereignty.  The  people  are  not 
the  less  sovereign,  because  they  institute  governments, 
and  appoint  them  as  agents  to  transact  their  business; 
although  they  necessarily  delegate  a  portion  of  their  sov 
ereign  powers  to  these  agents,  or  governments.  On  the 
contrary,  this  is  the  very  highest  exercise  of  sovereignty, 
and  implies  the  right  to  alter,  amend,  or  remodel  their 
governments.  Nay,  it  implies  the  right  of  a  people  to  set 
their  government  entirely  aside,  and  to  substitute  another 
in  its  room. 

"What,  then,  has  all  this  talk  about  the  powers  dele 
gated  to  the  State  Governments,  or  to  the  Federal  Gov 
ernment,  to  do  with  the  great  question  of  sovereignty? 
Those  governments  are  not  sovereign.  They  are  subordi 
nate  to  the  will  of  the  people,  by  whom  they  were  created ; 
and  a  subordinate  sovereignty  is  a  contradiction  in  terms. 
The  only  real  sovereignty  is  that  which  makes,  and 
unmakes,  Constitutions  and  Governments.  Or,  if  any  one 
is  pleased  to  call  any  Government  whether  State  or  Fed 
eral,  sovereign;  he  should  not  forget  that  it  is  merely  a 
delegated  sovereignty.  It  is  not  original;  it  is  derived.  It 
is  not  inherent;  it  comes  from  without;  and,  instead  of 


IS    DAVIS    A    TRAITOR?  133 

being  supreme,  it  depends  on  a  power  greater  than  itself. 
It  is  divisible,  and  may  be  divided  among  different  govern 
ments,  or  agents  of  the  supreme  power.  On  the  contrary, 
the  sovereign  power  of  a  State,  or,  in  other  words,  the 
power  of  the  people  of  a  State,  is  inherent,  original,  su 
preme,  indivisible,  and  inalienable.  This,  at  least,  is  the 
American  doctrine;  and  it  is  to  be  deeply  lamented  that 
Americans  should,  in  the  ardor  and  struggle  of  debate,  so 
frequently  forget,  or  overlook,  the  very  first  lessons  they 
have  ever  learned,  and  which  they  certainly  do  not  mean 
to  repudiate  or  discard. 

I  have  nothing  to  say,  then,  about  the  delegated  powers 
of  tins  or  that  government.  They  have  nothing  to  do 
with  the  question.  Others  may  wrangle  about  those 
powers,  if  they  please,  and  beat  their  brains  over  them- 
all  I  want  to  know  is,  where  resides  the  one  power  from 
which  all  such  delegated  powers  proceed.  The  difference 
between  this  one  power  and  the  powers  of  the  government 
it  creates,  is  the  difference  between  the  sun  and  its  rays, 
or  the  creator  and  its  manifold  creations.  Where,  then, 
does  this  one  sovereign  power  reside  ?  It  resides,  as  we 
have  seen,  in  each  State,  and  not  in  the  people  of  the 
United  States.  The  people  of  the  United  States,  indeed, 
were  not  one  people,  or  nation,  in  the  political  sense  of  the 
word,  and  were  never  clothed  with  any  sovereign  power 
whatever.  The  late  war  was,  it  is  true,  carried  on  "to 
preserve  the  life  of  the  nation."  But  there  was  no  such 
nation.  Its  substance  was  a  sham,  and  its  life  was  a  lie.* 

As  the  one  sovereign  power,  which  makes,  and  therefore 
unmakes,  Constitutions  and  Governments,  resides  in  each 
State ;  so  each  State  had  the  right  to  secede  from  the  Fed 
eral  Government.  As  each  State,  however,  only  made  or 
adopted  that  Government  for  itself;  so  she  could  un 
make  it  as  to  herself  only.  That  is,  she  had  no  power  to 
destroy  the  Federal  Union,  but  only  to  withdraw  from  it, 

*  See  chap.  xv. 


134  IS    DAVIS    A   TRAITOR? 

and  let  it  move  on  in  its  own  sphere.  In  the  exercise  of 
her  original,  inherent,  indivisible,  and  inalienable  /sover 
eignty,  she  merely  seceded  from  the  Union  to  which  be 
had  acceded,  and  asked  to  be  let  alone.  But  she  could  not 
escape  the  despotic,  all-devouring  LIE,  by  which  her  sov 
ereignty  had  been  denied,  and  her  rights  denounced  as  "a 
pestilential  heresy."  Nay,  by  which  she  had  been  stripped 
of  her  character  as  a  State,  and  degraded  to  the  rank  of  a 
county.  Was  that  the  purpose  for  which,  as  a  sovereign 
State,  she  entered  into  "the  more  perfect  Union?" 

"No  man,"  says  Mr.  Webster,  "makes  a  question  that 

the  people  are  the  source  of  all  political  power 

There  is  no  other  doctrine  of  government  here."*  This 
is  conceded.  The  people  make,  and  the  people  unmake, 
Constitutions.  This  is  the  universally  received  doctrine 
in  America.  It  is  asserted  by  Calhoun  as  strenuously  as 
by  Webster. 

But  the  Constitution  was  made  by  the  people  of  the 
several  States,  each  acting  for  itself,  and  bound  by  no 
action  but  its  own.  Hence,  as  each  State  acceded  to  the 
compact  of  the  Constitution,  so  each  State  may,  if  it 
choose,  secede  from  that  compact.  If  the  premise  is  true, 
the  conclusion  is  conceded;  and  the  premise  has  been  demon 
strated.  In  acceding  to  the  compact  of  the  Constitution, 
each  State  made  thq  Union  as  to  itself;  and,  in  seceding 
therefrom,  it  unmakes  the  Union  only  as  to  itself.  And 
it  does  so  by  virtue  of  its  own  inherent,  and  inalienable 
sovereignty. 

If  it  should  be  said,  that  the  people  of  the  several  States 
made,  but  cannot  unmake,  the  compact  of  the  Constitution 
as  to  themselves;  it  would  follow  that  the  people  of  1788 
alone  were  sovereign.  But  the  people  of  this  generation 
are  sovereign  as  well  as  the  people  of  that  generation.  The 
attribute  of  sovereignty  is,  according  to  the  American  doc 
trine,  inherent  and  inalienable.  The  people  of  Virginia^ 

*  Webster's  Works,  vol.  vi.  p.  22l7~ 


IS    DAVIS    A    TRAITOR?  135 

then,  in  the  year  1788,  did  not,  and  could  not,  absorb  and 
monopolize  the  sovereignty  of  all  subsequent  generations, 
so  as  to  deprive  them  of  its  exercise.  If  this  could  be  so, 
then  the  sovereign  people  of  one  age,  or  generation,  might 
deprive  the  sovereign  people  of  all  ages  and  generations 
of  their  power  and  freedom.  But  this  cannot  be.  The 
living,  as  well  as  the  dead,  are  sovereign.  As  the  people 
of  Virginia  in  1788  acceded  to  the  Union,  because  they 
believed  it  would  be  for  their  good;  so  the  people  of  Vir 
ginia  in  1861  had  aright  to  secede  from  the  Union,  because 
they  believed  it  had  been  made  to  work  their  insufferable 
harm.  Deny  this,  and  you  assert  the  sovereignty  of  the 
people  of  Virginia  of  1788,  at  the  expense  of  the  sover 
eignty  of  the  people  of  Virginia  for  all  future  ages.  Or,  in 
other  words,  you  take  all  power,  and  sovereignty,  and 
freedom  from  all  other  ages  and  generations,  in  order  to 
concentrate  and  bury  them  with  a  past,  departed,  inexpe 
rienced,  and  perhaps  fatally  deluded  generation.  The 
whole  American  doctrine  of  the  sovereignty  of  the  people 
is  false,  or  else  it  must  be  asserted  for  the  living  as  well  as 
for  the  dead;  and  even  if  it  is  false,  it  is  nevertheless  the 
doctrine  by  which  the  right  of  secession  should  be  tried. 

At  the  time  the  Constitution  was  adopted,  or  "the  more 
perfect  Union"  formed;  the  people  of  New  England  took 
the  lead  of  all  others  in  their  devotion  to  State-sovereignty 
and  State-rights.  Thus,  in  her  Constitution  of  1780,  Mas 
sachusetts  declared  :  "The  people  of  this  commonwealth 
have  the  sole  and  exclusive  right  of  governing  themselves, 
as  a  free,  sovereign,  and  independent  State ;  and  do,  and 
forever  hereafter  shall,  exercise  and  enjoy  every  power, 
jurisdiction,  and  right,  which  is  not,  or  may  not  hereafter, 
be  by  them  expressly  delegated  to  the  United  States  of 
America,  in  Congress  assembled."  Precisely  the  same 
language,  word  for  word,  is  contained  in  the  Constitution 
.of  New  Hampshire ;  which  was  made  twelve  years  after 
of  Massachusetts,  Thus,  after  the  new  Union  was 


136  IS   DAVIS    A    TRAITOR? 

formed,  New  Hampshire,  in  the  words  of  Massachusetts, 
declared  herself  a  "free,  sovereign,  and  independent 
State."  "Paris,"  it  has  been  said,  "is  France."  It  is  more 
certain  that  "Massachusetts  is  New  England." 

How  did  it  happen,  then,  that  Massachusetts  in  1780, 
and  consequently  New  England,  took  the  lead  of  all 
the  members  of  the  Union  in  her  devotion  to  the  doctrine 
of  State-sovereignty;  and  yet,  in  1861,  more  fiercely 
denounced  that  very  doctrine  as  "a  pestilential  heresy" 
than  any  other  State  in  existence?  The  answer  is  plain. 
The  mystery  is  easily  solved.  Or  rather,  it  is  no  mystery 
at  all  to  any  one  acquainted  with  the  character,  or  the 
history,  of  Massachusetts.  Never  has  she  been  in  the 
ascendency,  as  in  1861,  or  with  the  majority  working  the 
Union  for  her  benefit,  that  it  did  not  appear  to  her  eyes, 
like  the  full  moon,  a  great  world  of  light  full  of  inexpressi 
ble  beneficence  and  beauty.  Nor  has  she  ever  been  in 
the  minority,  feeling  the  pressure  of  the  Union,  or  its 
demands  upon  her  purse,  that  it  did  not  rapidly  wane,  and 
appear  to  her  emptied  of  all  its  glory.  Hence,  in  1861,  so 
great  was  the  glory  of  the  Union  to  her  enravished  eyes, 
that  it  blotted  out  the  States ;  just  as  the  meridian  sun 
blots  out  the  stars.  She  forgets  her  primitive  creed;  or, 
if  she  remembers  it  at  all,  it  is  only  to  denounce  it  as  the 
creed  of  "rebels  and  traitors."  On  the  other  hand,  when, 
in  1815,  Massachusetts  felt  the  Union  in  her  pockets ;  all 
its  glory  vanished,  and  the  Eights  of  the  States,  and  the 
Sovereignty  of  the  States,  came  out  to  her  keen  vision 
like  stars  after  the  setting  of  the  sun.  This  has  been  the 
great  misfortune  of  the  South,  that  the  world  did  not  turn 
around  quite  as  fast  at  her  end  of  the  Union  as  it  did  in 
New  England;  and  that  it  did  not  turn  exactly  in  the 
same  direction.  The  creed  of  the  fathers,  the  creed  of  all 
sections  in  1787,  the  creed  of  all  the  States  for  more  than 
thirty  years  after  the  formation  of  the  "more  perfect 
Union;"  was  substantially  the  creed  of  the  South  in  1861. 


IS   DAVIS    A    TRAITOR?  137 

There  she  stood.  But,  in  the  mean  time,  Massachusetts, 
and  consequently  all  New  England,  having  made  one  entire 
revolution,  denounced  her  primitive  creed, — still  the  creed 
of  the  South, — that  the  States  are  "free,  sovereign,  and 
independent,"  as  the  invention  of  rebels  and  traitors, 
designing  to  put  the  glorious  Union  out  of  joint.  True, 
the  South  did  dislocate  the  Union,  and  breed  fiery  discord; 
but  then,  this  was  simply  by  standing  still,  and  refusing  to 
follow  the  rapid  revolution  of  New  England. 

Argument  from  the  silence  of  the  Constitution. 

It  is  a  remarkable  fact,  that,  in  the  Constitution  of  the 
United  States,  there  is  not  a  word  relating  to  the  perpe 
tuity  or  continuance  of  the  Government  established  by  it. 
This  momentous  question  is  passed  over  in  profound 
silence.  Nor  was  this  omission  an  act  of  forgetfulness. 
It  was,  on  the  contrary,  the  result  of  deliberate  design. 
The  existing  Articles  of  Confederation  expressly  provided 
that  the  government  established  by  them  should  be  "per 
petual,"  and  should  never  be  changed  without  the  unan 
imous  consent  of  all  the  States  of  the  Union.  This  pro 
vision  was  deliberately  struck  out,  or  not  permitted  to 
appear  in  the  new  Constitution.  In  the  act  of  receding 
from  the  compact  of  the  Union,  which  had  expressly  pro 
nounced  itself  "perpetual,"  the  fathers  had  not  the  face 
to  declare  that  the  new  compact  should  last  forever. 
Time  had  demonstrated  the  futility  of  such  a  provision. 
The  Convention  of  1787  had  been  most  sadly  hampered 
by  it  in  their  design  to  erect  a  new  form  of  government, 
as  appears  from  the  Madison  Papers,  and  other  accounts 
of  its  proceedings.  Hence  they  wisely  determined  to 
leave  no  such  obstacle  in  the  way  of  the  free  action  of 
futur.e  generations,  in  case  they  should  wish  to  new-model 
their  government.  It  is  certain  that  no  such  obstacle  is 
found  in  the  Constitution  framed  by  them. 

Now  what  is  the  inference  from  this  fact,  from  this 


138  IS    DAVIS   A    TRAITOR? 

omission  ?  If  the  framers  of  the  Constitution  designed  to 
make  it  perpetually  binding,  why  did  they  not  say  so?  Nay, 
why  did  they  depart  from  the  plan  before  them,  and 
refuse  to  say  so?  Only  one  answer  can  be  given  to  this 
question.  They  did  not  intend  to  repeat  the  folly  of  seek 
ing  to  render  perpetual,  by  mere  dint  of  words,  those 
Articles  of  Union  between  Sovereign  States,  whose  bind 
ing  force  and  perpetuity  must  necessarily  depend  on  the 
justice  with  which  they  should  be  observed  by  the  parties  to 
them,  or  on  their  adaptation  to  the  great  ends  for  which 
they  were  enacted.  The  perpetuity,  or  continuance,  of 
the  new  Union  was  frequently  alluded  to  and  considered 
in  the  Convention  of  1787 ;  and  yet  there  is  not  one  sylla 
ble  on  the  subject  in  the  Constitution  made  by  them. 
This  speaks  volumes. 

It  is  argued,  in  the  Federalist,  *  that  as  the  old  Articles 
of  Confederation  had  utterly  failed  in  consequence  of 
defects  which  no  one  had  foreseen;  so  the  real  objections 
to  the  new  Constitution,  whatever  they  might  be,  would 
in  all  probability  remain  to  be  disclosed  by  time  and  ex 
perience.  Eeasoning  from  the  past,  it  was  concluded, 
that  no  one  could  foresee  what  its  real  defects  were,  or  how 
great  they  might  prove  in  practice.  Would  it  not,  then, 
have  been  infinitely  absurd  to  pronounce  it  perpetual,  or 
seek  to  stamp  it  with  the  attribute  of  immortality? 

The  truth  is,  that  the  new  Constitution  was  designed  by 
its  authors  to  last  just  as  long  as  it  should  be  faithfully 
observed  by  the  parties  to  it,  or  as  it  should  answer  the 
greatpends  of  its  creation,  and  no  longer.  On  the  failure 
of  either  of  these  conditions,  then,  in  their  view,  the  pow 
er  by  which  it  was  ordained  possessed  the  inherent  and 
indefeasible  right  to  withdraw  from  it.  Otherwise  there 
would  be  no  remedy,  not  even  in  the  sovereign  power 
itself,  for  the  greatest  of  all  political  evils  or  abuses.  Oth 
erwise  we  should  have  to  repudiate  and  reject  the  great 

*  No.  XXXVIII. 


IS    DAVIS    A    TRAITOR?  139 

principle  of  American  freedom,  which  has  never  been 
called  in  question  by  any  statesman  of  the  New  World, 
or  over  which  the  least  cloud  of  suspicion  has  ever  been 
cast  by  any  American  citizen. 

What,  then,  is  the  position  assumed  by  those  who  deny 
the  right  of  secession  ?  In  asserting  that  a  State  has  no 
right  to  withdraw  from  the  Union,  they  declare  that  the 
Constitution,  or  Articles  of  Union,  is  perpetually  binding. 
That  is  to  say,  by  a  forced  construction,  they  introduce 
into  the  Constitution,  the  very  provision  which  its  framers 
most  deliberately  refused  to  insert  therein !  They  refused 
to  say,  that  the  new  compact  should  be  perpetual ;  and 
yet  these  interpreters  declare,  that  they  designed  to  make 
it  perpetual !  • 

Both  Story  and  Webster  admit,  as  we  have  repeatedly 
seen,  that  if  sovereign  States  enter  into  a  compact  or  Con 
federation,  without  expressly  prescribing  any  period  for 
the  continuance  of  the  Union;  then  any  State  has  the 
right  to  secede -at  pleasure.  This  is  the  true  inference  to 
be  drawn  from  the  silence  of  the  Constitution  as  to  the 
continuance  of  the  Union ;  an  inference  too  clear  and  un 
questionable  to  be  denied  by  either  a  Story  or  a  Webster. 
If  they  have  sought  to  evade  its  force,  or  obscure  the 
right  of  secession;  this  is  by  assuming  the  ground,  so 
fully  exploded  in  the  preceding  pages,  that  the  Constitu 
tion  was  not  a  compact  between  the  States  of  the  Union. 

"It  is  sometimes  asked,"  says  Mr.  Motley,  "why  the 
Constitution  did  not  make  a  special  provision  against  the 
right  of  secession.  How  could  it  do  so?"*  Why,  simply, 
by  transferring  the  words  of  the  old  Constitution  to  the 
new,  and  saying  "the  union  shall  be  perpetual."  There  is 
no  impossibility  in  the  case.  The  thing  had  been  done 
once,  and  it  might  easily  have  been  done  again,  if  the  fra 
mers  of  the  Constitution  had  desired  to  do  it.  Many 
words,  phrases,  and  provisions  of  the  old  Constitution 

*  Rebellion  Record,  Vol.  I.  p.  214. 


140  IS    DAVIS    A    TRAITOR? 

were  transferred  by  them  to  the  new;  and  if  they  had 
wished  to  do  so,  they  might  just  as  easily  have  transfer 
red  those  words,  "the  union  shall  be  perpetual,"  or  last 
till  all  the  parties  consent  to  a  separation.  "How  could 
they  do  so?"  asks  Mr.  Motley;  and  I  reply,  how  could  he 
ask  so  silly  a  question? 

"It  would  have  been  puerile,"  says  he,  "for  the  Consti 
tution  to  say  formally  to  each  State,  thou  shalt  not  secede." 
There  was  no  necessity,  perhaps,  that  the  Convention 
should  have  been  very  formal  in  the  language  it  addressed 
to  the  States.  But  would  it  have  been  puerile,  or  ridicu 
lous,  if  the  Convention  had  said,  "the  Union  shall  be  per 
petual."  Who  can  doubt  that  if  these  words  had  been 
inserted  in  Jhe  new  Constitution,  that  Mr.  Motley  would 
have  wielded  them  as  an  unanswerable  argument  against 
the  right  of  secession?  Indeed,  these  words  answer  that 
purpose  so  well,  that  Dr.  Hodge  borrows  them  from  the 
old  Articles  of  Confederation,  and  passes  them  oif  as  "the 
very  words  "  of  the  Constitution,  in  order  to  demonstrate 
the  palpable  absurdity  of  secession ;  in  order  to  show 
that  secession  is  in  direct  and  open  defiance  of  "the  avow 
ed  design  of  the  compact"  of  1787.  These  words  were, 
indeed,  the  very  ones  he  needed  to  demolish  the  right  of 
secession;  and  his  need  was  so  great,  that  he  came  at 
them  in  no  very  legitimate  way.  Could  any  thing  be 
more  feeble,  or  puerile,  than  Mr.  Motley's  attempt  to 
account  for  the  silence  of  the  Convention  on  the  momen 
tous  subject  of  secession?  or  more  clearly  illustrate  the 
difficulty  of  getting  rid  of  the  argument  from  that  silence 
in  favor  of  secession?  The  truth  is,  that  the  Convention, 
in  its  desire  to  secede  from  the  old  compact,  was  so  great 
ly  embarrassed  by  the  clause  declaring  that  "the  Union 
shall  be  perpetual,"  that  it  deliberately  removed  that 
obstacle  from  the  path  of  future  legislation:  and,  whether 
it  was  intended  by  the  Convention  or  not,  the  legal  effect 
of  this  was  to  establish  the  right  of  secession  under  the 
new  compact  between  the  same  parties. 


IS    DAVIS    A    TRAITOR?  141 

Argument  from  the    Fundamental  Principle  of  the    Union. 

"To  render  a  Federation  desirable,"  says  Mr.  John 
Stuart  Mill,  "several  conditions  are  necessary.  The  first 
of  these  is,  that  there  should  be  a  sufficient  amount  of  mu 
tual  sympathy  among  the  populations"*  This  sentiment 
recommends  itself  to  the  good  sense  of  every  man  in  the 
world;  nay,  to  every  man  who  is  not  insane  from  the  influ 
ence  of  passion.  Even  Mr.  Greely,  before  -ihe  war,  could 
say, — "We  hope  never  to  live  in  a  Republic,  whereof  one 
section  is  pinned  to  another  by  bayonets."  Such  is  in 
deed  the  desire  of  every  good  man,  nay,  of  every  rational 
being;  for,  as  Mr.  Mill  says,  no  union  of  States  is  desirable, 
unless  it  be  held  together  by  the  cement  of  good  feeling, 
s  well  as  of  interest. 

Tn  like  manner,  John  Quincy  Adams  says:  "The  indis 
soluble  link  of  union  between  the  people  of  the  several 
States  of  this  confederated  nation  is,  after  all,  not  in  the 
right,  but  in  the  heart.  If  the  day  should  ever  come,  (may 
Heaven  avert  it)  when  the  affections  of  the  people  of  these 
States  shall  be  alienated  from  each  other;  when  the  fra 
ternal  spirit  shall  give  way  to  cold  indifference,  or  collision 
of  interest  shall  fester  into  hatred,  the  bands  of  political 
associations  will  not  long  hold  together  parties  no  longer 
attracted  by  the  magnetism  of  conciliated  interests  and 
kindly  sympathies ;  AND  FAR  BETTER  WILL  IT  BE  FOR  THE 

PEOPLE  OF  THE  DISUNITED  STATES  TO  PART  IN  FRIENDSHIP 
FROM  EACH  OTHER,  THAN  TO  BE  HELD  TOGETHER  BY  CON 
STRAINT.  Then  will  be  the  time  for  reverting  to  the 
precedents  which  occurred  at  the  formation  and  adoption 
of  the  Constitution,  to  form  again  a  more  perfect  union, 
by  dissolving  that  which  could  no  longer  bind,  and  to  leave 
the  separated  parts  to  be  re-united  by  the  law  of  politi 
cal  gravitation  to  the  centre." 

"Better,"  says  Mr.  Adams,  "to  part  in  friendship,  than 

*  Representative  Government.,  chap.  xvii. 


142  IS   DAVIS   A   TRAITOR? 

to  be  held  together  by  restraint."  History,  it  is  said, 
repeats  itself.  Some  of  the  Greek  States,  wishing  to  part 
in  peace  from  their  confederates,  were  held  together 
by  force  of  arms.  This,  says  Freeman,  in  his  learned  work 
on  Federal  Government,  ultimately  proved  injurious  to 
those  who  drew  the  sword  of  coercion. 

Argument  from  the  Eight  of  Self -Government. 

The  thirteen  Colonies,  in  the  Declaration  of  Independ 
ence,  justified  their  separation  on  the  distinct  ground,  that 
all  "governments"  derive  "their  just  powers  from  the  con 
sent  of  the  governed."  It  was  in  obedience  to  this  great 
principle,  that  the  American  Union  became  a  free  and  vol 
untary  association  of  States.  This,  by  its  very  nature,  ex 
cludes  the  idea  of  coercion.  For,  if  States  are  compelled  to 
remain  in  thellnion  against  their  will,  this  is  subjugation, 
and  not  a  copartnership  in  honor,  interest,  freedom,  and  glo 
ry.  It  destroys  the  autonomy,  annihilates  the  freedom,  and 
extinguishes  the  glory  of  the  subjugated  States.  The  sys 
tem  is  transformed.  It  is  no  longer  a  sisterhood  of  free 
States,^but  the  vassalage  of  some,  and  the  dominion  of  others. 

This  is  so  obvious,  that  it  was  declared  at  first,  even  by  the 
most  zealous  advocates  of  President  Lincoln,  that  one  no 
intended  to  coerce  a  State.  What  then  ?  Did  they  mean 
to  let  it  go  in  peace?  No,  they  neither  intended  to  coerce 
a  seceding  State,  nor  let  it  depart!  But  how  was  such  a 
thing  possible  ?  Why,  these  admirable  casuists,  by  a  most 
refined  and  subtle  distinction,  determined  that  they  would 
not  coerce  a  State,  but  only  the  people  of  whom  it  is  com 
posed!  The  State  secedes.  The  citizens  acknowledge 
their  allegiance  to  the  State,  and  determine  to  obey  the 
ordinance  of  secession.  And  thereupon  the  Federal  Gov 
ernment  resolves  to  wage  war,  not  upon  the  State  itself, 
but  only  upon  the  people  of  the  State!  Happy  State! 
Miserable  people !  The  one  may  depart;  but  the  other 
must  come  back !  But  if  the  Federal  Government  had 


IS    DAVIS    A    TRAITOR?  143 

only  waged  war  upon  the  State,  how  would  it  have  pro 
ceeded  otherwise  than  it  did? 

The  authors  of  this  very  nice  distinction,  were  evidently 
driven  to  assume  such  a  position,  by  the  horror  which 
Madison,  Ellsworth,  Mason,  Hamilton,  and  other  fathers 
of  the  Constitution,  were  known  to  have  expressed  at 
the  idea  of  the  coercion  of  a  State.  No!  they  would  not 
coerce  a  State;  they  would  not  be  guilty  of  the  horrid 
thing  so  eloquently  denounced  by  the  fathers;  they  would 
only  wage  war  on  the  men,  women,  and  children  of  whom 
the  State  is  composed!  How  admirable  the  acuteness! 
How  wonderful  the  logic. 

In  1848,  Mr.  Lincoln  had  not  forgotten  his  very  first, 
and  nearly  his  very  last,  lesson  in  the  science  of  govern 
ment.  He  had  read  it  in  the  Declaration  of  Indepen 
dence;  he  had  heard  it  recited  in  school;  he  had  heard  it 
most  eloquently  spouted  every  fourth  of  July.  How, 
then,  could  he  forget  it,  without  some  very  powerful  mo 
tive?  No  humble  rail-splitter,  no  honest  citizen,  could 
forget  such  a  lesson.  It  requires  a  great  politician,  or  a 
President,  to  forget,  despise,  and  trample  such  things  un 
der  foot.  Hence,  in  1848,  the  humble  citizen,  Abraham 
Lincoln,  like  every  other  American  citizen,  publicly  de 
clared,  that  "any  people  whatever  have  the  right  to  abol 
ish  the  existing  government,  and  form  a  new  one  that 
suits  them  better.  This  is  a  most  valuable,  a  most  sacred 
right."  Yes,  any  people  whatever;  the  thirteen  British 
Colonies;  the  Greeks;  the  States  of  South  America; 
Poland;  Hungary;  any  and  every  people  under  the  wide 
expanse  of  heaven ;  except  the  people  of  the  South.  But 
why  except  the  South?  The  reason  is  plain.  It  was,  in 
deed,  most  perfectly  and  fully  explained  by  Mr.  Lincoln 
himself.  "When  asked,  as  President  of  the  United  States, 
"why  not  let  the  South  go?"  his  simple,  direct,  and  honest 
answer  revealed  one  secret  of  the  wise  policy  of  the 
Washington  Cabinet.  "Let  the  South  go!"  said  he. 


144  IS    DAVIS    A   TRAITOR? 

"where,  then,  shall  we  get  our  revenue?"  There  lies  the  se 
cret.  The  Declaration  of  Independence  is  great;  the 
voice  of  all  the  fathers  is  mighty;  but  then  they  yield  us 
no  revenue.  The  right  of  self-government  is  "a  most 
valuable,  a  most  sacred  right;"  but  in  this  particular 
case,  it  gives  us  no  revenue.  Hence,  this  "most  valuable, 
this  most  sacred  right,"  may  and  should  shine  upon  every 
other  land  under  heaven;  but  here  it  must  "pale  its  inef 
fectual  fires,"  and  sink  into  utter  insignificance  and  con 
tempt  in  the  august  presence  of  the  "ALMIGHTY  DOLLAR." 

As  the  object  of  the  Black  Republican  leaders,  in  wish 
ing  to  retain  the  South,  was  not  to  lose  revenue;  so  now 
that  they  have  the  South,  the  only  use  they  have  for  her 
is  to  lay  taxes  and  other  burdens  of  government  upon  her. 
In  open  and  shameless  violation  of  the  great  principle  of 
76,  the  South  is  united  to  the  North  by  the  tie  of  "  taxa 
tion  without  representation."  Is  this  "the  sacred  right" 
of  self-government?  The  Union  waged  a  seven  years  war 
to  establish  that  right,  and  a  four  years  war  to  demolish  it. 

Every  American  citizen  has  taken  in  the  idea  of  self- 
government  with  his  mother's  milk;  has  heard  it  from  all 
his  most  venerated  guides,  teachers,  and  oracles ;  has  pro 
claimed  it  himself,  perhaps,  all  his  life  as  "a  most  valuable, 
and  a  most  sacred  right."  Hence,  he  should  not  be 
required,  all  on  a  sudden,  to  proclaim  the  diametrically 
opposite  doctrine.  He  should  be  allowed  some  little  time, 
at  least,  to  clear  his  throat  for  the  opposite  utterance.  Is 
it  not  quite  natural,  then,  that  his  early  and  life-long  pre 
judice  in  favor  of  the  right  of  self-government,  should  have 
clung  to  the  Editor  of  the  Tribune,  the  great  organ  of  the 
Republican  party,  even  while  that  party  was  preparing 
the  way  for  its  subversion  ?  True,  it  was  but  an  organ ;  yet 
had  it  so  long,  and  so  earnestly,  proclaimed  the  great  right 
of  self-government,  that  some  little  time,  at  least,  should 
have  been  allowed  for  it  to  come  right  around  to  the  dia 
metrically  opposite  position.  Accordingly,  on  the  9th 


IS   DAVIS   A   TRAITOR?  145 

of  November,  three  days  after  Mr.  Lincoln's  election,  that 
organ  uttered  the  sentiments:  "If  the  cotton  States 
shall  become  satisfied  that  they  can  do  better  out  of  the 
Union  than  in  it,  we  insist  on  letting  them  go  in  peace. 

*  #  *  *  *  *  * 

We  must  ever  resist  the  right  of  any  State  to  remain 
in  the  Union  and  nullify  or  defy  the  laws  thereof.  To 

WITHDRAW    FROM    THE    UNION    IS    QUITE    ANOTHER    MATTER; 

and  whenever  any  considerable  section  of  our  Union  shall 
deliberately  resolve  to  go  out,  WE  SHALL  RESIST  ALL  COER 
CIVE' MEASURES  DESIGNED  TO  KEEP  IT  IN.  We  hope  never 
to  live  in  a  Republic  whereof  one  section  is  pinned  to 
another  by  bayonets." 

Again,  on  the  17th  December,  just  before  the  secession 
of  South  Carolina,  the  same  organ  said :  "If  it  [the  Decla 
ration  of  Independence]  justifies  the  secession  from  the 
British  Empire  of  three  millions  of  colonists  in  1776,  WE 

DO  NOT  SEE  WHY  IT  WOULD  NOT  JUSTIFY  THE  SECESSION  OF 
FIVE  MILLIONS  OF  SOUTHERNERS  FROM  THE  FEDERAL  UNION 

IN  1861.  If  we  are  mistaken  on  this  point,  why  does  not 
some  one  show  us  wherein  and  why?  For  our  own  part, 
while  we  deny  the  right  of  slaveholders  to  hold  slaves  against 
the  will  of  the  latter ;  we  cannot  see  how  twenty  millions  of 
people  can  hold  ten,  or  even  five,  in  a  detested  Union  with  them 
by  military  force*  *****  if  seven  or  eight  con 
tiguous  States  should  present  themselves  authoritatively 
at  Washington,  saying,  '  We  hate  the  Federal  Union ;  we 
have  withdrawn  from  it;  we  give  you  the  choice  between 
acquiescing  in  our  secession  and  arranging  amicably  all 
incidental  questions  on  the  one  hand  and  attempting  to 
subdue  us  on  the  other,  WE  COULD  NOT  STAND  UP  FOR  COER 
CION,  FOR  SUBJUGATION,  FOR  WE  DO  NOT  THINK  IT  WOULD 
BE  JUST.  WE  HOLD  THE  RIGHT  OF  SELF-GOVERNMENT  EVEN 
WHEN  INVOKED  IN  BEHALF  OP  THOSE  WHO  DENY  IT  TO 
OTHERS.  So  MUCH  FOR  THE  QUESTION  OF  PRINCIPLE.'  " 
*  *  *  *  #  #  * 

8 


146  IS    DAVIS    A    TRAITOR? 

"Any  attempt  to  compel  them  by  force  to  remain  would 
be  contrary  to  the  principles  enunciated  in  the  immortal 
Declaration  of  Independence^contrary  to  the  fundamental 
ideas  on  which  human  liberty  is  based." 

On  the  23d  February,  1861,  after  the  cotton  States  had 
formed  their  confederacy,  the  Tribune  used  this  language : 
"  We  have  repeatedly  said,  and  we  once  more  insist,  that  the 
great  principle  embodied  by  Jefferson  in  the  Declaration 
of  American  Independence,  that  Governments  derive  their 
just  powers  from  the  consent  of  the  governed,  is  sound 
and  just ;  and  that  if  the  slave  States,  the  cotton  States,  or  the 
gulf  States  only,  choose  to  form  an  independent  nation,  THEY 
HAVE  A  CLEAR  MORAL  RIGHT  TO  DO  so.  Whenever  it  shall 
be  clear  that  the  great  body  of  Southern  people  have  become 
conclusively  alienated  from  the  Union,  and  anxious  to  escape 
from  it,  WE  WILL  DO  OUR  BEST  TO  FORWARD  THEIR  VIEWS." 

President  Buchanan,  from  whose  interesting  book  the 
above  extracts  have  been  taken,  adds :  "  In  a  similar  spirit, 
leading  [Republicans  everywhere  scornfully  exclaimed, 
'Let  them  go;'  'We  can  do  better  without  them;'  'Let  the 
Union  slide,'  and  other  language  o'f  the  same  import." 

Before  the  war,  it  was  indignantly  denied,  that  the 
abolitionists  constituted  more  than  a  small  minority  of 
the  Eepublicans.  How  is  it  since  the  war?  Does  not 
almost  every  man  of  them  now  claim  that  he  has  always 
been  an  abolitionist,  and,  as  such,  come  in  for  his  share 
of  glory  in  the  forced  emancipation  of  the  slaves?  It  is 
certain,  that  of  all  the  men  in  the  Union,  the  abolitionists 
of  the  Republican  party  were  the  most  active  asserters, 
and  the  most  powerful  promoters,  of  secession  and  disu 
nion.  They  everywhere  proclaimed,  not  only  the  right, 
but  the  sacred  duty  of  secession.  William  Lloyd  Garrison 
led  the  way.  "In  the  expressive  and  pertinent  language 
of  Scripture,"  said  he,  the  Constitution  'was  a  covenant 
with  death,  and  an  agreement  with  hell,'  null  and  void 
before  God,  from  the  first  moment  of  its  inception — the 


^  IS    DAVIS    A   TRAITOR?  147 

framers  of  which  were  recreant  to  duty,  and  the  supporters 
of  which  are  equally  guilty."*  Yet,  how  strange!  the 
men  of  this  school  enlisted  in  the  ranks,  and  fought  under 
the  banner  of  Mr.  Lincoln ;  who  was  bound  by  his  oath  to 
support  that  "covenant  with  death  and  agreement  with 
hell!"  Did  they  fight  for  the  Constitution?  Did  they 
heartily  join  in  the  cry  for  the  Union  ? 

Again,  he  said,  "the  motto  inscribed  on  the  banner  of 
Freedom  is,  no  Union  with  slave-holders  "  f  *  *  *  * 
"Our  motto  is,  no  Union  with  slave-holders,  either  reli 
gious  or  political."  J  [I  am  holier  than  thou!]  "In  with 
drawing  from  the  American  Union,  we  have  the  God  of  jus 
tice  with  us."  §  Did  this  man,  then,  or  his  followers, 
fight  for  the  Union?  "Circulate,"  he  cried,  "a  declara 
tion  Of  DISUNION  FROM  SLAVE-HOLDERS  THROUGHOUT  THE 

COUNTRY.  Hold  mass  meetings — assemble  in  Conventions 
— nail  your  banners  to  the  mast."  ||  Did  these  men,  then, 
take  down  their  banners,  trample  its  motto  in  the  dust, 
and  join  the  loud  war-cry  for  the  Union  of  the  fathers  ? 
If  so,  then  it  was  not  because  they  hated  that  Union  the 
less,  but  because  they  hated  Southerners  the  more. 

Now  this  man  William  Lloyd  Garrison  was  an  honest 
fanatic.  He  just  came  right  down  with  a  direct  sledge 
hammer  force  on  all  slave-holders,  and  on  all  the  poor, 
pitiful,  pulling  hypocrites,  who  pretended  to  desire  to  pre 
serve  the  Constitution  and  the  Union;  and  \vho,  to  that 
end,  labored  to  explain  away  the  provisions  of  that  "sacred 
compact,"  as  they  delighted  to  call  the  Constitution. 
"  Those  provisions,"  said  they,  "  were  meant  to  cover  sla 
very,"  yet  "as  they  may  be  fairly  interpreted  to  mean 
something  exactly  the  reverse,  it  is  allowable  to  give 
them  such  an  interpretation,  especially  as  the  cause  of  free 
dom  will  be  thereby  promoted"*^  In  thus  stating  this  hypo 
critical  position,  Mr.  Garrison  must  have  had  Mr.  Sumner  in 

*Anti- Slavery  Examiner,  Vol.  xi,  p.  101.  flbid,  p.  101. 

t  Ibid,  p.  118.     %  Ibid,  p.  119.     ||  Ibid,  p.  119.     fi  Ibid,  p.  104. 


148  IS   DAVIS   A   TRAITOR?  ^ 

his  mind's  eye.  But  with  honest  scorn  and  contempt  he 
tears  the  mean  fabric  to  tatters,  and  scatters  it  to  the 
winds!  "This,"  says  he,  "is  to  advocate  fraud  and  vio 
lence  to  one  of  the  contracting  parties,  whose  co-operation 
was  secured  only  by  an  express  agreement  and  undertaking 
between  them  both,  in  regard  to  the  clauses  deluded  to;  and 
that  such  a  construction,  if  enforced. by  laws  and  penalties, 
would  unquestionably  lead  to  civil  war,  and  the  aggrieved 
party  would  justly  claim  to  have  been  betrayed,  and  robbed  of 
their  Constitutional  rights."  * 

"No  honest  use  can  be  made  of  it,"  says  he,  "in  opposi 
tion  to  the  plain  intention  of  its  framers,  except  to  declare 
the  contract  at  an  end,  and  to  refuse  to  serve  under  #."f 
It  is  of  no  use  to  lie,  said  he,  the  Constitution  is  "a  con 
tract"  between  the  States;  an. "express  agreement  and 
undertaking"  between  the  North  and  the  South.  He 
will  not  have  this  "express  agreement"  explained  away. 
"It  is  objected,"  says  he,  "that  slaves  are  held  as  prop 
erty,  and  therefore,  as  the  clauses  refers  to  persons,  it  can 
not  mean  slaves.  Slaves  are  recognized  not  merely  as 
property,  but  also  as  persons, —  as  having  a  mixed  charac 
ter —  as  combining  the  human  with  the  brute.  This  is 
paradoxical,  we  admit;  but  slavery  is  a  paradox  —  the 
American  Constitution  is  a  paradox  —  the  American  Union 
is  a  paradox — the  American -Government  is  a  paradox — 
and  if  any  one  of  these  is  to  be  repudiated  on  that  ground, 
they  all  are.  That  it  is  the  duty  of  the  friends  of  free 
dom  to  deny  the  binding  authority  of  them  all,  and  to 
secede  from  all,  we  distinctly  affirm""^ 

Such  were  the  sentiments  of  Mr.  Lloyd  Garrison,  in 
1844,  delivered  in  their  annual  address  to  the  Anti-Slavery 
society  of  America,  as  its  president.  Precisely  the  same 
sentiments  were  entertained  by  the  two  learned  secretaries 
of  that  society,  namely,  Wendell  Phillips  and  Maria  Weston 

*Antl- Slavery  Examiner,  Vol.  xi,  p.  104. 
flbid.  J  Ibid.  p.  114. 


IS    DAVIS    A   TRAITOR?  149 

Chapman,  as  well  as  by  all  its  leading  members.  They 
proclaimed  the  duty  of  secession  from  the  Constitution, 
from  the  Union,  and  from  the  Government  of  America. 
They  wished  to  have  nothing  to  do  with  slave-holders. 
In  the  mild  and  conciliatory  language  of  their  president, 
they  longed  to  get  away  and  to  live  apart  from  those 
"incorrigible  men-stealers,  merciless  tyrants,  and  blood-thirsty 
assassins."  * 

Such  was  the  gentle  and  persuasive  language,  and  such 
were  the  loyal  sentiments,  of  the  abolitionists  from  1844 
to  1861.  The  following  resolutions  were  passed  at  a  meet 
ing  of  the  American  Anti-Slavery  Society: 

Resolved,  '  That  secession  from  the  United  States  Government  is 
1  the  duty  of  every  Abolitionist,  since  no  one  can  take  office  or  deposit 
4  his  vote  under  the  Constitution  without  violating  his  anti-slavery 
4  principles,  and  rendering  himself  an  abettor  to  the  slave-holder  in 
4  his  sin.' 

Resolved,  l  That  years  of  warfare  against  the  slave  power  has  con- 
1  vinced  us  that  every  act  done  in  support  of  the  American  Union 
4  rivets  the  chain  of  the  slave— that  the  only  exodus  of  the  slave  to 
4  freedom,  unless  it  be  one  of  blood,  must  be  over  the  remains  of  the 
1  present  American  Church  and  the  grave  of  the  present  Union.' 

Resolved,  '  That  the  Abolitionists  of  this  country  should  make  it 
4  one  of  the  primary  objects  of  this  agitation  to  dissolve  the  Ameri- 
4  can  Union.' 

Yet  of  all  the  war-spirits  in  the  country,  these  very 
men  were  the  loudest  and  fiercest  in  their  cries  for  a  war 
of  coercion  to  put  down  secession,  as  rebellion  and  trea 
son.  In  its  burning  hate  of  the  Union,  the  Tribune  had 
become  poetical,  and  addressed  THE  AMERICAN  FLAG  as 
follows : 

Tear  down  that  flaunting  lie  1 

Half-mast  the  starry  flag  ! 
Insult  no  sunny  sky 
With  hate's  polluted  rag  ! 

But,  all  on  a  suddfen,  that  "polluted  rag"  became  the  most 
*  Anti- Slavery  Examiner,  Vol.  xi,  pp.  111-12. 


150  .IS    DAVIS   A   TRAITOR? 

sacred  ensign  of  freedom  that  ever  floated  between  hea 
ven  and  earth !  The  cry  has  gone  forth :  "  This  Union  is  a 
lie!  The  American  Union  is  an  imposition.  *  *  *  I 
am  for  its  overthrow.  *  *  *  Up  with  the  flag  of  dis 
union,  that  we  may  have  a  glorious  Republic  of  our  own." 
But  anon  and  from  the  same  person,  the  opposite  cry  is 
heard:  "Down  with  the  flag  of  disunion,  and  up  with  the 
flag  of  the  Union,  that  we  may  'preserve  the  life  of  the  na 
tion,'  the  glorious  Eepublic  of  the  fathers.' "  Even  the  des 
pised  Constitution,  "the  antiquated  parchment"  of  Henry 
Ward  Beecher,  becomes  all  at  once  young,  and  fresh,  and 
beautiful  again ;  and  that  Reverend  gentleman  stands  be 
fore  the  world  at  Exeter  Hall  as  the  grand  representative 
of  the  "constitutional  union"  party  of  this  country. 

Is  there,  in  the  history  of  the  world,  another  instance 
of  a  change  so  sudden,  so  complete,  and  so  wonderful  in 
the  avowed  sentiments  of  any  great  body  of  men,  as  that 
which  took  place  among  the  abolitionists  of  this  country 
in  1861?  Now  whence  all  this  intense  love  of  the  Union, 
where  recently  there  had  been  such  deadly  hate  ?  Whence 
this  new-born  desire  to  be  forever  associated  with  "the 
merciless  tyrants,  the  blood-thirsty  assassins  "  of  the  South? 
The  truth  is,  they  did  not  love  the  Union  then,  and  they 
do  not  want  the  Union  now.  They  raised  the  cry  of 
"the  Union;"  because,  as  one  of  their  leaders  said,  they 
believed  they  could  "win  on  the  Union."  And  having 
ridden  into  power  on  "the  Union,"  and  consolidated  their 
power  in  the  name  of  "the  Union;"  they  now  resist  the 
persistent  efforts  of  President  Johnson  to  restore  the 
Union. 

But  Mr.  Greely  has,  in  his  "American  Conflict,"  made  a 
most  awkward  and  unsatisfactory  attempt  to  explain  the 
course  of  the  Union-hating  and  the  Union-loving  Tribune. 
It  was,  perhaps,  a  little  difficult  for  him  to  speak  out  all 
that  was  in  him  on  this  delicate  subject.  -  The  truth  seems 
to  be,  1.  That  the  word  which  went  forth  from  President 


IS   DAVIS    A   TRAITOR?  151 

Lincoln,  "If  we  let  the  South  go,  where  shall  we  get  our 
revenue?"  is  one  of  the  causes  of  the  great  change  in 
question.  Several  books  had,  in  1860,  been  published  to 
illustrate  the  subject  of  "Southern  Wealth  and  Northern 
Profits,"  and,  upon  reflection,  the  North  concluded  that, 
after  all,  she  had  some  use  for  the  South.  She  was  nat 
urally  indignant  at  the  thought  of  losing  the  bird,  which 
had  so  long  laid  for  her  the  golden  egg.  2.  Secession 
offered  a  splendid  opportunity,  or  occasion,  on  which  to 
wreak  a  little  wrath  on  the  slave-holders  of  the  South,  on 
those  "incorrigible  men-stealers,  merciless  tyrants,  and 
blood  thirsty  assas'sins,"  who  so  richly  deserved  to  die. 
But  it  would,  of  course,  be  much  more  respectable  to  kill 
them  as  "rebels  and  traitors,"  than  merely  as  slave-hold 
ers.  Hence,  the  very  men  who  had  been  foremost  and 
fiercest  in  preaching  the  duty  of  secession  and  disunion, 
became,  all  on  a  sudden,  the  most  clamorous  for  the  blood 
of  secessionists  as  traitors  to  "the  glorious  Union."  As 
the  cynic,  Diogenes,  trampled  on  the  robe  of  Plato's 
pride  with  a  still  greater  pride ;  so  the  abolitionists  panted 
for  the  blood  of  "blood-thirsty  assassins"  with  a  still 
greater  thirst.  Hence,  more  than  any  other  class  of  men, 
they  insisted  that  Mr.  Lincoln,  however  reluctant,  should 
"  cry  havoc,  and  let  slip  the  dogs  of  war."  3.  Secession 
furnished  a  fine  pretext,  a  glorious  occasion,  for  the  forced 
emancipation  of  the  slaves  at  the  South.  Hence,  just  be 
fore  Mr.  Lincoln  publicly  declared  that  he  had  neither  the 
wish,  nor  the  power,  to  interfere  with  slavery  in  the 
States,  the  word  privately  went  forth  from  a  member  of 
his  Cabinet,  that  secession  should  be  punished  with  the 
emancipation  of  the  blacks,  and  with  the  utter  devasta 
tion  of  the  South,  by  fire  and  sword.  *  This  word  was, 
of  course,  intended  for  "the  faithful."  For  if,  at  that 

*  Perhaps  that  member  of  his  Cabinet  knew  the  design  of  Mr. 
Lincoln's  administration  better  than  it  was  then  known  to  Mr.  Lin 
coln  himself. 


152  IS   DAVIS    A    TRAITOR? 

early  day,  such  a  design  had  been  publicly  avowed,  it 
would  have  filled  the  North  with  amazement,  horror, 
and  disgust.  But  has  it  not  been  accomplished  to  the 
very  letter? 

Such  were  the  causes;  especially  the  last  two,  by  which, 
it  seems  to  me,  so  wonderful  a  revolution  was  produced  in 
the  political  views  and  aspirations  of  the  Northern  abol 
itionists.  The  change  appeared  like  magic.  "The  anti 
quated  parchment"  was  renovated;  the  "polluted  rag" 
was  purified;  and  the  Union  became,  not  only  habitable, 
but  the  only  fit  habitation  for  free  men.  But,  then,  the 
Union  was  not  to  be  "the  more  perfect  Union"  of  the 
fathers;  the  Constitution  was  not  to  be  the  compact  of 
1787;  and  "hate's  polluted  rag"  was  to  be  consecrated 
and  glorified  by  hate.  On  the  contrary,  the  Union  was 
to  be  cast  into  the  furnace  of  war,  seven  times  heated, 
and  to  come  forth  free  from  the  sin  of  slavery,  and 
cemented,  not  by  "the  mutual  sympathy  of  its  popula 
tions,"  but  by  their  blood.  It  was  to  be  a  new  Union;  a 
bright  and  beautiful  emanation,  not  from  the  consent  of 
the  governed,  but  from  the  sovereign,  the  supreme,  the 
sublime  will  of  the  Northern  abolitionists.  How  lustily 
soever  they  joined  in  the  war-cry  for  the  Union,  this  wTas  in 
order  that  they  might  the  more  effectually  overthrow  it,  and 
ordain  one  of  their  own  in  its  place.  Is  not  this  the  true 
secret  of  their  new-born  love  for  "the  glorious  Union?" 

Previous  to  the  war,  it  was  frequently  alleged,  that  the 
abolitionists  constituted  only  a  small  minority  in  the  Re 
publican  party.  It  is  certain,  that  they  controlled  the 
policy  of  Mr.  Lincoln's  administration.  "The  higher 
law,"  "the  law  written  on  the  hearts  and  consciences  of 
freemen,*'  was  the  rule  of  their  conduct.  For  the  Consti 
tution,  for  the  compact  of  1787,  for  that  "covenant  with 
death  and  agreement  with  hell,"  they  cared  less  than 
nothing;  except  when  it  agreed  w^ith  their  own  will,  or 
could  be  made  a  pretext  for  their  dark  designs.  The  fact. 


IS    DAVIS    A    TRAITOR?  153 

that  there  was  not  the  shadow  of  an  authority  for  coercion 
in  the  Constitution,  had  not  the  least  weight  with  them. 
Kay,  if  the  power  to  coerce  had  been  expressly  denied  to  the 
Federal  Government  in  the  Constitution;  this  provision 
would  have  been  easily  explained  away,  or  overruled  by  "the 
law  written  on  the  hearts  and  consciences  of  freemen."  It 
would  have  been  but  a  "straw  to  the  fire  i'  the  blood." 

President  Buchanan  could  not  find  the  power  to  coerce 
a  State  in  the  Constitution  he  had  sworn  to  support.     In 
like  manner,  Professor  Bernard,  of  Oxford,  England,  find 
ing  no  authority  for  the  coercion  of  a  State  in  the  Consti 
tution  of  1787,  pronounces  it  wrong.     The  same  ground 
is  taken  by  Mr.  Freeman,    of  the    same  University,    in 
his  learned  work  on  Federal  Government.     But  if  coer 
cion  is  a  wrong   under  the    Constitution;    then,   surely, 
secession  is  a  Constitutional  right.     Every  man  has  the 
legal  right  to  do  any  thing,  which  is  not  forbidden  by  -the 
law  of  the  land.     He  may  not  have  the  moral,  but  he  has 
the  legal,  right  to  do  it.     A  miserly  act,  for  example,  espe 
cially  in  a  rich  man,  is  morally  and  socially  wrong.     But 
if  there  is  no  law  against  it,  then,  however  rich  the  man 
may  be,  he  has  the  legal  right  to  do  it.     We  may  despise 
the  act;  we  may  abhor  it;  and  we  may  denounce  it  as 
bitterly  as  any  one  ever  denounced  secession.     But  still, 
in  the  case  supposed,  the  act  is   done  in  the  exercise  of 
a  legal  right ;  which  every  one  is  bound  to  recognize  and 
respect.     This  ambiguity  in  the  term  right  has,  indeed, 
been  the  source  of  no  little  darkness  and  confusion  in  the 
discussion  of  moral  and  political  questions.    Mr.  Buchanan 
seems  to  have  been  confused  by  this  ambiguity,  when  he 
denied  both  the  right  of  coercion  and  the  right  of  seces 
sion.     Surely,  both  positions  cannot  be  true,  in  the  legal 
sense  of  the  term  right.     For,  if  we  say,  that  coercion  is 
a  constitutional  wrong,  or  usurpation,  is  not  this  saying  that 
the  Constitution  permits  secession,  or,  in  other  words,  that 
it  is  a  Constitutional  right? 
8* 


154  IS   DAVIS   A   TRAITOR? 

This  appears  so  clear  to  my  mind,  that  when  Mr. 
Buchanan  denied  the  right  of  secession,  I  suppose  ho 
merely  intended  to  condemn  secession  as  a  moral  or  social 
wrong.  This  is  the  way  in  which  he  must  be  understood, 
if  we  would  not  make  him  contradict  himself.  He  may 
have  dreaded,  he  may  have  abhorred,  the  act  of  secession; 
and  he  may,  therefore,  have  pronounced  it  wrong  in  the 
forum  of  conscience.  Eut  if  the  Constitution  does  not 
authorize  coercion,  then  it  permits  secession;  or,  in  other 
words,  secession  is  a  Constitutional  right,  which  every 
power  on  earth  is  bound  to  respect  as  existing  under  the 
supreme  law  of  the  land;  a  Constitutional  right,  which  the 
Federal  Government  could  deny  only  by  an  act  of  usurpa 
tion. 

Coercion  is  unconstitutional.  Coercion  is  wrong.  Coer 
cion  strikes  down  and  demolishes  the  great  fundamental 
principle  of  the  Declaration  of  Independence, — the  sacred 
right  of  self-government  itself.  Coercion  wages  war  on 
the  autonomy  of  free  States.  Secession,  on  the  other 
hand,  asserts  the  right  of  self-government  for  every  free, 
sovereign,  and  independent  State  in  existence. 

Virginia  did  not  favor  secession.  But  when  the  hour 
of  trial  came,  she  stood  in  the  imminent,  deadly  breach 
between  the  secession  of  South  Carolina  and  the  coercion 
of  Massachusetts;  receiving  into  her  own  broad  bosom  the 
fatal  shafts  of  war,  till  she  fell  crushed,  bleeding  and  ex 
hausted  to  the  earth.  I  appeal  to  the  universe,  then,  if 
her  course  was  not  noble,  heroic,  sublime. 

Massachusetts  has,  on  the  contrary,  favored  both  seces 
sion  and  coercion  by  terms.  The  pilgrim  fathers  of  Mas 
sachusetts  delighted  in  two  things;  first,  in  the  freedom 
from  persecution  for  themselves;  and,  secondly,  in  the 
sweet  privilege  and  power  to  persecute  others.  In  like 
manner,  their  sons  have  rejoiced  in  two  things ;  first,  in 
the  right  of  self-government  for  themselves ;  and,  secondly, 
in  the  denial  of  that  right  to  others. 


IS   DAVIS    A   TRAITOR?  155 

Argument  from  the  opinion  of  well-informed  and  intelligent 
'  foreigners. 

The  position  that  secession  is  a  Constitutional  right, 
flowing  from  the  idea  that  the  Constitution  is  a  compact 
between  sovereign  States,  is  adopted  by  many  impartial 
foreigners,  who  have  been  at  the  pains  to  examine  our 
institutions  for  themselves.  Thus,  says  M.  De  Tocqueville, 
in  his  celebrated  work  on  "Democracy  in  America:" 
"The  Union  was  formed  by  the  voluntary  agreement  of  the 
States ;  and  in  uniting  together  they  have  not  forfeited 
their  nationality,  nor  have  they  been  reduced  to  the  condition 
of  one  and  the  same  people.  If  one  of  the  States  choose  to 
withdraw  from  the  compact,  it  would  be  difficult  to  disprove 
its  right  of  doing  so,  and  the  Federal  Government  would  have 
no  means  of  maintaining  its  claims  directly  either  by  force  or 
right."*  In  like  manner,  Dr.  Mackay  says :  "  The  Federal 
Government  exists  on  sufferance  only.  Any  State  may, 
at  any  time,  Constitutionally  withdraw  from  the  Union,  and 
thus  virtually  dissolve  it.  It  was  not  certainly  created 
with  the  idea  that  the  States,  or  several  of  them,  would 
desire  a  separation ;  but  whenever  they  choose  to  do  it,  they 
have  no  obstacle  in  the  Constitution."  Mr.  Spence  also,  to 
whom  we  owe  this  extract  from  Dr.  Mackay,  comes  to  the 
conclusion,  in  his  able  work  on  "The  American  Union," 
that  secession  is  a  Constitutional  right.  Nay,  he  unan 
swerably  establishes  this  conclusion,  by  facts  which  lie  on 
the  very  surface  of  American  history,  and  which,  however 
they  may  be  concealed  or  obscured  by  the  influence  of 
party  passions  at  home,  cannot  escape  the  scrutiny  of 
impartial  foreigners,  who  may  simply  desire  to  ascertain 
the  truth  in  regard  to  such  questions.  After  referring  to 
the  opinions  of  M.  De  Tocqueville  and  Dr.  Mackay,  Mr. 
Spence  very  justly  remarks :  "Here,  secession  is  plainly 
declared  a  Constitutional  right,  not  by  excited  Southern 
ers,  but  by  impartial  men  of  unquestionable  ability."^ 

*  Vol.  i,  Chap,  xviii.  p.  413.        f  The  American  Union,  p.  201. 


156  IS   DAVIS    A    TRAITOR? 

An  intelligent  foreigner,  as  De  Solme,  in  his  admirable^ 
treatise  on  the  Constitution  of  England,  observes,  pos 
sesses  some  very  decided  advantages  in  the  study  of  the 
fundamental  institutions  of  a  country.  This  is  specially 
true  in  regard  to  all  questions,  which  have  been  drawn 
into  the  vortex  of  party  politics,  and  mixed  up  with  the 
struggle  for  power  and  the  emoluments  of  office.  Never 
has  its  justness  been  more  forcibly  illustrated,  than  in 
regard  to  the  conflicting  theories  of  the  Constitution  of 
the  United  States.  Though  Lord  Brougham,  to  select 
only  one  example,  most  profoundly  sympathized  \vith  the 
"abolitionists  of  the  North;  yet,  in  spite  of  all  his  natural 
affinities,  the  simple  facts  of  history  constrained  him  to 
adopt  the  Southern  view  of  the  Constitution.  Hence,  in 
his  work  on  Political  Philosophy,  he  says:  "It  is  plainly 
impossible  to  consider  the  Constitution  which  professes  to 
govern  this  whole  Union,  this  Federacy  of  States,  AS  ANY 
THING  OTHER  THAN  A  TREATY."*  Accordingly,  he  speaks 
of  the  American  Union  of  States,  as  "the  Great  League." 
It  required  no  great  research,  or  profound  logic,  to  reach 
this  conclusion.  On  the  contrary,  it  requires,  as  we  have 
seen,  the  utmost  effort  to  keep  facts  in  the  back-ground, 
and  all  the  resources  of  the  most  perverse  ingenuity,  to 
come  to  any  other  conclusion.  It  is,  indeed,  only  necessa 
ry  to  know  a  few  facts,  with  which  every  stu'dent  of  our 
history  is  perfectly  familiar,  and  which  are  well-stated  by 
Lord  Brougham,  in  order  to  recognise  the  fundamental 
principle  of  the  "Great  League."  "The  affairs  of  the  col 
onies,"  says  he,  "having  during  the  revolutionary  war 
been  conducted  by  a  Congress  of  delegates  for  each,  on 
the  restoration  of  peace,  and  the  final  establishment  of 
their  independence,  they  formed  this  Federal  Constitution, 
which  was  only  gradually  adopted  by  the  different  members  of 
the  Great  League.  Nine  States  having  ratified  it,  the  new 
form  of  government  went  into  operation  on  the  4th  of 

*  Vol.  iii.  chap.  xxx.  p.  336. 


IS    DAVIS    A    TRAITOR?  157 

March,  1789.  Before  the  end  of  1790  it  had  received  the 
assent  of  the  remaining  States."  These  facts  alone,  it  is 
believed,  are  absolutely  decisive  in  favor  of  the  position, 
that  the  American  Union  was  a  voluntary  association  of 
States,  or  a  compact  to  which  the  States  were  the  parties. 
Hence  it  is  that  foreigners,  whether  impartial  or  pre 
judiced  against  the  South,  adopt  the  Southern  view  of 
the  Constitution,  when  they  examine  the  subject  with  the 
least  care. 

It  is  natural,  indeed,  that  foreigners,  before  they  exam 
ine  the  subject,  should  look  upon  the  American  people  as 
one  consolidated  nation;  for  that  is  the  external  appear 
ance  which  they  present  to  those  who  view  the  affairs 
of  this  continent  from  a  distance.  But  like  a  multiple 
star,  which  in  the  distance  seems  to  be  a  single  lumina 
ry  to  the  naked  eye,  the  American  Union  is  no  sooner 
approached,  or  more  closely  examined,  than  it  is  resolved 
into  a  constellation  of  sister  States.  Nothing  but  party 
passion,  it  is  believed,  can  resist  so  plain  a  conclusion; 
just  as  the  clearest  revelations  of  the  telescope  were  vehe 
mently  denied  by  many  of  the  mos't  le.arned  cotemporaries 
of  Gallileo.  Hence  it  is  that  De  Tocqueville,  and  Mackay, 
and  Spence,  and  Brougham,  and  Cantu,*  and  Heeren,f  as 
well  as  other  philosophers,  jurists  and  historians  among 
the  most  enlightened  portions  of  Europe,  so  readily  adopt 
the  Southern  view  of  the  Constitution,  and  pronounce  the 
American  Union  a  confederation  of  States. 

Argument  from  the  Virginia  Ordinance  of  Ratification. 

A  great  many  unfounded  objections  were  urged  against 
the  Constitution  by  its  enemies.  Mr.  Madison  has,  in  the 
thirty-eighth  number  of  the  Federalist,  drawn  a  powerful 
picture  of  "the  incoherence  of  the  objections  to  the  plan 
proposed;"  that  is,  to  the  Constitution  of  '87.  Now  this 

*  Historie  Universelle,  originally  written  in  Italian,  vol.  17,  p.  371. 
f  "  European  States  and  Colonies,"  p.  350—351. 


158  IS    DAVIS   A    TRAITOR? 

chaos  of  conflicting  objections,  which  were  raised  by  the 
enemies  of  the  Constitution  in  order  to  defeat  its  adoption, 
could  not  truly  reflect  the  nature  and  design  of  that  plan 
for  the  government  of  the  Union.  Yet,  however  strange 
it  may  seem,  Mr.  Justice  Story  and  Mr.  Webster  have, 
as  we  have  seen,  *  selected  one  of  these  objections  to  show 
what  the  Constitution  is ;  though  this  very  objection  had 
been  most  triumphantly  refuted  by  Mr.  Madison,  both  in 
the  Federalist  and  in  the  ratifying  Convention  of  Virginia. 
By  the  same  sort  of  logic,  if  logic  it  may  be  called,  they 
might  have  fastened  almost  any  other  absurd  interpreta 
tion  on  the  Constitution,  as  well  as  the  construction  that 
it  was  ordained  by  the  people  of  America  as  one  nation, 
and  not  by  the  several  States.  By  appealing  to  the  objec 
tions  of  Patrick  Henry  alone,  as  an  authority,  they  might 
have  proved  that  there  was  "not  one  federal  feature"  in 
the  Constitution  of  '87,  as  well  as  a  dozen  other  glaring 
absurdities;  and  that  the  fathers  of  the  Constitution  did 
not  know  what  they  were  about  when  they  called  the 
work  of  their  own  hands,  "  The  Federal  Government  of 
these  States." 

In  the  ratifying  Convention  of  Virginia,  Patrick  Henry 
frequently  dwelt,  with  great  earnestness,  on  the  danger  of 
entering  into  a  new  and  untried  Union,  from  which  there 
might  be  no  escape.  Virginia  is  now  free,  said  he,  and  the 
mistress  of  her  own  destiny.  But  once  in  the  new  Union, 
the  power  of  the  General  Government  may  be  wielded  for 
her  injury  and  oppression.  This  result  was,  in  fact,  elo 
quently  predicted  by  Patrick  Henry,  George  Mason,  Wil 
liam  Gray  son,  and  other  members  of  the  same  Convention. 
This  argument  proceeded  on  the  supposition,  either  that 
Virginia  would  not  have  the  right  to  secede  from  the 
Union,  or  else  that  this  right  would  be  denied  by  her  op 
pressors.  The  debates  in  the  Virginia  Convention  of  1788 
are,  indeed,  replete  with  passages  of  burning  eloquence, 

*  Chap,  xi,  pp.-  84-5. 


IS    DAVIS    A    TRAITOR?  .  159 

which  predict  the  calamities  that  would  fall  on  that  noble 
State,  as  well  as  on  other  Southern  States,  from  the  op 
pressions  of  "the  Northern  majority."  Hence,  the  people 
of  Virginia,  in  their  ordinance  of  ratification,  took  the  pre 
caution  to  guard  against  this  danger,  by  expressly  reserv 
ing  the  right  to  resume  the  powers  delegated  to  the  Federal 
Government  "whensoever  the  same  shall  be  perverted  to 
their  injury  or  oppression." 

The  view  which  Virginia  has  taken  of  her  own  ordi 
nance  is  disputed.  The  words  of  this  ordinance  are  as 
follows:  "We,  the  delegates  of  the  people  of  Virginia, 

duly  elected,  &c Do  in  the  name,  and  in  behalf 

of  the  people  of  Virginia,  declare  and  make  known,  that 
the  powers  granted  under  the  Constitution,  being  derived  from 
the  people  of  the  United  States,  be  resumed  by  them  whensoever 
the  same  shall  be  perverted  to  their  injury  or  oppression" 

Mr.  Webster  understood  these  words,  "the  people  of 
the  United  States,"  precisely  as  he  understood  them  in  the 
preamble  to  the  Constitution.  Hence,  he  quotes  the  Vir 
ginia  ordinance  of  ratification,  in  order  to  show  that  the 
Constitution  was  established,  not  by  the  States,  nor  by 
the  people  of  the  States,  but  by  "  the  people  of  the  United 
States  in  the  aggregate,"  or  as  one  nation.  But,  as  we 
have  repeatedly  seen,  this  is  a  false  view  of  the  words  in 
question.  They  were  not  so  understood  by  the  Virginia 
Convention  of  1788.  In  that  Convention,  Mr.  Madison 
most  clearly  and  fully  explained  these  words,  precisely  as 
he  had  previously  done  in  The  Federalist.  The  powers  of 
the  new  government  are  derived,  said  he,  from  the  people  of 
the  United  States,  "but  not  the  people  as  composing  one 
great  society,  but  the  people  as  composing  thirteen  sovereign 
ties."  Such  was  the  meaning  of  the  words  in  question, 
as  explained  by  James  Madison,  to  whom  the  Convention 
looked  for  information  on  the  subject,  and  by  whom  they 
were  led  to  adopt  and  ratify  the  Constitution.  Yet  these 
words  are  quoted  by  Webster,  Everett,  and  other  politi- 


160  IS    DAVIS    A    TRAITOR? 

cians  of  Massachusetts,  in  order  to  show  that,  in  the  opinion 
of  the  Virginia  Convention  of  1788,  the  Constitution  of  the 
United  States  was  ordained  by  the  people  of  America  as  one 
nation ;  and  that  the  people  of  America  as  one  nation  may, 
therefore,  resume  the  delegated  powers  "whensoever  they 
shall  be  perverted  to  their  injury  or  oppression."  To 
this  interpretation  and  inference,  there  are  several  insuper 
able  objections. 

In  the  first  place,  the  Constitution  was  not  to  be  estab 
lished  by  .the  people  of  America  as  one  nation,  or  by  "the 
people  of  the  United  States  as  one  great  society;"  and 
this  fact  was  perfectly  well  known  to  the  Virginia  Con 
vention  of  1788.  It  has  already  been  sufficiently  demon 
strated,  that  the  Constitution  was  ordained,  not  by  the 
people  of  America  as  one  great  society,  but  by  each  Peo 
ple  acting  for  itself  alone,  and  to  be  bound  exclusively  by 
its  own  voluntary  act.  It  would  be  a  gross  solicism  in 
language,  as  well  as  in  logic,  to  say  that  the  people  of  the 
United  States  as  one  great  society,  might  resume  powers 
which  were  not  delegated  by  them.  The  sovereignty  which 
delegates,  is  the  sovereignty  which  resumes;  and  it  is 
absurd  to  speak  of  a  resumption  of  powers  by  any  other 
authority,  Avhether  real  or  imaginary. 

In  the  second  place,  the  evil  intended  to  be  remedied 
shows  the  true  meaning  of  the  words  in  question.  The 
Virginia  people  did  not  fear,  that  the  people  of  the  Uni 
ted  States  might  pervert  the  powers  of  the  Federal  Gov 
ernment  for  their  own  oppression.  Their  fears  were  for  the 
weak,  not  for  the  strong;  not  for  the  people  of  the  United 
States  in  the  aggregate,  but  for  the  Southern  States  in 
the  minority;  and  especially  for  the  State  of  Virginia. 
They  feared,  as  the  burning  eloquence  of  Henry,  and 
Mason,  and  Monroe,  and  Grayson  evinced,  that  the  new 
Government  would  "operate  as  a  faction  of  seven  States 
to  oppress  six;"  that  the  Northern  majority  would,  sooner 
or  later,  trample  on  the  Southern  minority.  They  feared, 


IS    DAVIS    A    TRAITOR?  161 

in  the  language  of  Grayson,  that  the  new  Union  would 
be  made  "to  exchange  the  poverty  of  the  North  for  the 
riches  of  the  South."  In  the  words  of  Henry,  "This 
Government  subjects  every  thing  to  the  Northern  major 
ity.  Is  there  not,  then,  a  settled  purpose  to  check  the 
Southern  interest?  We  thus  put  unbounded  power  over 
our  property  in  hands  not  having  a  common  interest  with 
us.  How  can  the  Southern  members  prevent  the  adoption 
of  the  most  oppressive  mode  of  taxation  in  the  Southern 
States,  as  there  is  a  majority  in  favor  of  the  Northern 
States?  Sir,  this  is  a  picture  so  horrid,  so  wretched,  so 
dreadful,  that  I  need  no  longer  dwell  upon  it."*  Did  the 
Convention  of  Virginia,  then,  seek  to  quiet  these  dreadful 
apprehensions,  by  declaring,  that  the  people  of  the  Uni 
ted  States  "as  one  great  society,"  might  resume  the  pow 
ers  of  the  Federal  Government  whensoever  they  should 
be  perverted  to  their  oppression?  By  declaring,  that  this 
one  great  society,  or  rather  the  majority  of  Ihis  society, 
might  resume  the  powers  of  the  Federal  Government 
whensoever  they  should  be  pleased  to  use  them  for  the 
oppression  of  the  minority?  Could  any  possible  interpre 
tation  render  any  legislation  more  absolutely  ridiculous  ? 
It  puts  the  remedy  in  the  hands  of  those  from  whom  the  evil 
is  expected  to  proceed!  It  gives  the  shield  of  defence  to  the 
very  power  which  holds  the  terrible  sword  of  destruction ! 
The  Convention  of  Virginia  spoke  "in  behalf  of  the 
people  of  Virginia;"  and  not  in  behalf  of  the  overbearing 
majority,  by  whom  it  was  feared  these  people  might  be 
crushed.  They  sought  to  protect,  not  the  people  of  Amer 
ica,  who  needed  no  protection,  but  the  people  of  Virginia., 
Hence,  as  the  people  of  Virginia  had  delegated  powers  to 
the  Federal  Government^  they  reserved  "in  behalf  of  the 
people  of  Virginia,"  the  right  to  resume  those  powers 
whensoever  they  should  be  perverted  to  their  injury  or 
oppression. 

*  Elliot's  Debates,  Vol.  iii,  p.  312. 


162  IS   DAVIS    A    TRAITOR? 

Now  this  reservation  enures  to  the  benefit  of  all  the 
parties  to  the  Constitutional  compact;  for  as  all  such  com 
pacts  are  mutual,  so  no  one  party  can  be  under  any 
greater  obligation  than  another.  Hence,  a  condition  in 
favor  of  one  is  a  condition  in  favor  of  all.  This  well- 
known  principle  was  asserted  by  Mr.  Calhoun  in  the  great 
debate  of  1833,  with  the  remark  that  he  presumed  it 
would  not  be  denied  by  Mr.  Webster;  and  it  was  not  de 
nied  by  him.  Hence  any  State,  as  well  as  Virginia,  had 
the  express  right  to  resume  the  powers  delegated  by  her 
to  the  Federal  Government,  in  case  they  should  be  per 
verted  to  her  injury  or  oppression. 

But,  it  may  be  asked,  were  the  powers  of  the  Federal 
Government  perverted  to  the  injury  or  oppression  of  any 
Southern  State?  It  might  be  easily  shown,  that  they 
were  indeed  perverted  to  the  injury  and  oppression  of 
more  States  than  one;  but  this  is  unnecessary,  since  the 
parties  to  the  compact,  the  sovereign  States  by  whom  it 
was  ratified,  are  the  judges  of  this  question.* 

*  See  Virginia  Resolutions  of  '98;  Kentucky  Resolutions  of  '98 
and  '99  ;  the  Virginia  Report  of  1800,  &c.,  &c. 


CHAPTEK     XVII. 

Arguments  against  the  Right  of  Secession. 

HAVING  considered  the  arguments  in  favor  of  the  right 
of  secession,  it  is,  in  the  next  place,  proper  to  analyze  and 
discuss  those  which  have  been  most  confidently  urged 
against  that  right.  Among  these,  none  have  been  relied 
on  with  greater  confidence,  than  those  which  are  supposed 
to  flow  from^the  express  language  of  the  Constitution. 
This  class  of  arguments  shall,  therefore,  occupy  the  first 
place  in  the  following  examination  and  discussion. 

Argument  from  "the  very  words"  of  the  Constitution. 

Now  this  argument  comes  directly  to  the  point.  Let  us 
see,  then,  these  "very  words  and  avowed  design  of  the 
compact"*  of  1787,  by  which  the  right  of  secession  is 
repudiated  and  rejected.  "The  contracting  parties,"  we 
are  told,  stipulate  that  "the  Union  shall  be  perpetual."')' 
Again,  the  same  writer  says,  "these  States  are  pledged  to 
a  perpetual  Union;"  quoting,  as  he  supposes,  the  very 
words  of  the  Constitution.  But,  unfortunately  for  his 
confident  argument,  these  words  are  not  to  be  found  in 
the  Constitution  at  all.  They  are  evidently  taken  from 
the  old  Articles  of  Confederation!  Would  it  not  be  well, 
if  learned  doctors  of  divinity  would  only  condescend  to 
read  the  Constitution,  before  they  undertake  to  interpre- 
tate  it  for  the  benefit  of  their  confiding  flocks  ?  Especially, 

*  The  Rev.  Dr.  Hodge  on  the  State  of  the  Country,  p.  24. 
f  Ibid.  p.  25. 


164  IS    DAVIS    A    TRAITOR? 

should  they  not  take  some  little  pains  to  ascertain  "the 
very  words  of  the  compact"  of  1787,  before  they  erect  on 
its  very  words  the  grave  charge  of  treason  against  their 
"Southern  brethren?" 

The  Constitution,  says  an  English  writer,  does  "  express 
ly  prohibit  the  States  from  entering  into  any  treaty,  alli 
ance,  or  confederation,  such  as  the  so-called  Southern 
Confederacy."*  This  argument  is  relied  on  with  great 
confidence.  It  may  be  found  in  all  the  books,  pamphlets, 
and  publications,  with  which  the  opponents  of  secession 
have  flooded  the  English  public  on  the  "American  Ques 
tion."  Yet^as  it  appears  to  me,  it  clearly  admits  of  two 
perfectly  satisfactory  replies. 

In  the  first  place,  the  Constitution,  or  the  new  "Arti 
cles  of  Union,"  is  obligatory  only  upon  the  members  of  the 
Union.  No  one  supposes  that  the  States  could,  while 
remaining  in  the  Union,  form  any  other  "treaty,  alliance, 
or  confederation."  But  their  duty  while  in  the  Union  is 
one  thing,  "and  their  right  to  withdraw  from  the  Union  is 
quite  another.  In  the  articles  of  any  partnership,  whether 
great  or  small,  a  clause  may  be  inserted  forbidding  the 
parties  to  enter  into  any  other  partnership  of  the  same 
kind,  or  for  the  same  purpose.  Indeed  this  is  often  done. 
But  who,  for  a  moment,  ever  imagined  that  such  a  clause 
would  render  the  partnership  perpetual,  or  forever  pre 
vent  any  of  its  members  from  withdrawing  from  the  firm? 

In  the  second  place,  the  trords  in  question  were  trans 
ferred  from  the  old  to  the  new  "Articles  of  Union."  Thus, 
say  the  old  Articles,  "No  two  or  more  States  shall  enter 
into  any  treaty,  confederation,  or  alliance  whatever 
between  them."f  Now  this  clause  was  binding  as  long  as 
the  Confederation  continued.  But  did  it  prohibit  "any 
two  or  more  States"  from  withdrawing  from  the  Union, 
in  order  to  establish  "  a  more  perfect"  one?  By  no 
means.  It  is,  on  the  contrary,  perfectly  notorious,  that 

*Ludlow's  History  of  the  United  States.         f  Art. 'VI. 


IS   DAVIS   A    TRAITOR?  165 

some  of  the  States  did  withdraw  from  that  Union  in  order 
to  form  the  Union  of  1787.  Hence,  nothing  but  the  blind 
force  of  passion  can  render  this  clause  more  obligatory  in 
the  new  "Articles  of  Union,"  or  in  the  Constitution,  than 
it  was  in  the  old  one. 

Nay,  if  words  could  have  made  any  union  of  States  per 
petual,  the  old  Articles  of  Confederation  would  still  form 
the  supreme  law  of  the  American  Union.  For  the  thir 
teenth  Article  expressly  declares,  that  "the  articles  of  this 
confederation  shall  be  observed  by  every  State,  and  the 
Union  shall  be  perpetual;  nor  shall  any  alteration  at  any 
time  hereafter  be  made  in  any  of  them,  unless-  such  altera 
tions  be  agreed  to  by  a  Congress  of  the  United  States,  and 
be  afterward  confirmed  by  the  Legislatures  of  every  State." 
Yet,  in  spite  of  these  words,  some  of  the  States  did  with 
draw  from  that  "perpetual  union,"  and  formed  a  new  one. 
The  people  of  1787  refused  to  be  bound  by  the  people  of 
1778.  Th^y  deemed  themselves  no  less  sovereign  than 
their  predecessors.  Hence,  in  the  words  of  the  English 
writer  above-quoted,  "the  plan  of  course  failed,  like  all 
similar  attempts  to  fetter  future  legislation."* 

No  words,  and  no  principle  of  law  or  justice,  could  render 
such  Articles  of  Union  forever  binding  on  free,  sovereign, 
and  independent  States.  Nothing  but  passion,  or  brute 
force,  could  have  compelled  the  millions  of  1865  to  bend 
their  necks  to  the  legislation  of  1787  against  their  will. 
The  Union  of  '87  owed  its  existence  to  secession  from  a 
voluntary  association  of  States;  and, 'being  itself  a  volun 
tary  association  of  States,  it  could  not  escape  from  the 
law  of  its  creation.  The  right  of  secession  was,  indeed, 
the  law  both  of  its  origin  and  its  existence. 

The  English  writer,  who  argues  so  confidently  against 
the  right  of  secession  from  the  words  of  the  Constitution, 
does  not  seem  to  have  been  at  all  aware  that  those  words 
were  borrowed  from  the  old  Articles  of  Confederation, 

*  Ludfow's  History  of  the  United  States,  pp.  143—4. 


166  IS   DAVIS    A    TRAITOR? 

or  that  the  Convention  of  1787  had  understood  them  very 
differently  from  himself.  The  people  of  this  country  were 
bound  by  the  legislation  of  1787,  not  by  Mr.  Ludlow's 
mistakes  and  blunders  respecting  that  legislation. 

The  right  of  coercion  is  sometimes  deduced  from  that 
clause  of  the  Constitution,  which  contains  the  President's 
oath  of  office,  and  which  requires  him  to  "preserve,  pro 
tect,  and  defend  the  Constitution  of  the  United  States." 
This  is,  indeed,  the  great  argument  against  secession  from 
the  words  of  the  Constitution.  But  it  is  a  gross  solicism ; 
a  petitio  principii  as  plain  as  possible.  For,  if  by  and 
under  the  Constitution,  a  State  has  a  right  to  secede  from 
the  Union ;  then  the  President  is  sworn  to  preserve,  not 
to  destroy,  this  Constitutional  right.  Hence,  when  it  is 
argued  that  the  President  is  bound  to  coerce  in  order  to 
preserve,  protect,  and  defend  the  Constitution;  it  is 
assumed  that,  in  the  view  of  the  Constitution,  secession  is 
wrong  and  coercion  is  right ;  which  is  very  clearly  to  beg 
the  question.  It  takes  the  very  point  in  dispute  for 
granted.  Such  an  argument,  such  a  fallacy,  may  have 
satisfied  those  who  were  passionately  bent  on  coercion ; 
but,  in  the  eye  of  reason,  it  is  wholly  destitute  of  force. 
If  a  State  had  the  Constitutional  right  to  secede,  and  did 
secede,  then  she  was  out  of  the  Union ;  and  the  President 
had  no  more  power  to  execute  the  laws  of  the  United 
States  within  her  limits,  than  he  had  to  enforce  them  in 
the  dominions  of  Great  .Britain,  or  France,  or  Russia.  The 
President's  oath  of  office  requires  him,  not  to  usurp  any 
power,  but  only  to  exercise  those  which  are  conferred  on 
him  by -the  Constitution. 

Argument  from  the  Wisdom  of  the  Fathers. 

An  argument  against  the  right  of  secession  is  deduced 
from  the  wisdom  of  the  framers  of  the  Constitution.  It 
is  supposed,  that  men  who  were  so  remarkable  for  their 
sagacity  and  wisdom,  would  not  have  undertaken  to  erect 


IS   DAVIS    A    TRAITOR?  167 

a  grand  Confederacy  of  States,  and  yet  have  been  so 
absurd  as  to  allow  a  State  to  secede  from  it.  It  is  argued, 
that  they  could  not  have  intended  to  astonish  the  world 
with  the  "  extraordinary  spectacle  of  a  nation  existing 
only  at  the  will  of  each  of  its  constituent  parts."  * 

This  argument,  which  is  urged  by  Judge  Story,  and 
others,  amounts  simply  to  this,  that  the  fathers  of  the 
Constitution  could  not  have  been  such  fools  as  to  make  a 
compact  between  the  States.  For  it  is  conceded,  that  this 
extraordinary  spectacle,  this  wonderful  exhibition  of 
weakness,  results  from  the  doctrine  that  the  Constitution 
is  a  compact  between  the  States.  The  conclusions,  says 
Mr.  Justice  Story,  "which  naturally  flow  from  the  doc 
trine  that  the  Constitution  is  a  compact  between  the 
States,"  "go  to  the  extent  of  reducing  the  government  to 
a  mere  confederacy  during  pleasure ;  and  of  thus  present 
ing  the  extraordinary  spectacle  of  a  nation  existing  only 
at  the  will  of  each  of  its  constituent  parts."  Hence,  in 
the  opinion  of  Judge  Story,  all  that  is  wonderful  in  this 
spectacle  resolves  itself  into  the  most  unaccountable  fact, 
that  the  fathers  should  have  framed  "a  compact  between 
the  States"!  A  thing  which  has  been  frequently  done  in 
the  history  of  the  world,  and  which,  as  we  have  seen,  was 
actually  done  by  the  Convention  of  1787.  It  is  impossible, 
exclaims  Judge  Story;  we  simply  reply,  it  is  a  fact.  A 
learned  doctor,  in  one  of  Moliere's  plays,  argues  that,  after 
taking  his  remedy,  it  was  impossible  that  his  patient 
should  have  died.  But  the  poor  servant,  who  was  not- 
blessed  with  half  the  doctor's  learning  or  ingenuity,  was 
weak  enough  to  believe  that  the  fact  of  his  death  was 
some  little  evidence  of  its  possibility.  The  question  is, 
not  what  the  fathers  in  the  opinion  of  one  of  the  sons, 
ought  to  have  done,  but  what  they  have  actually  done. 

The  son  in  question,  for  example,  is  shocked  and  aston 
ished  at  the  "extraordinary  spectacle ^of  a  nation  existing 
.  *  Story's  Commentary  on  the  Constitution.  Book  lii.  ch.  iii. 


168  IS    DAVIS    A    TRAITOR? 

at  the  will  of  its  constituent  parts."  If  this  very  learned 
son  had  only  possessed  a  little  more  wisdom,  he  would 
never  have  discovered,  perhaps,  this  wonderful  spectacle 
of  "a  nation,"  with  "its  constitutent  parts,"  or  subordi 
nate  fractions.  He  would,  on  the  contrary,  have  seen  that 
the  sovereign  States  which  he  calls  "the  constituent 
parts,"  or  the  fractions,  of  his  imaginary  nation,  are  really 
the  units  of  a  confederation.  I  am  rather  inclined  to 
doubt,  therefore,  whether  such  a  son  is  the  fittest  of  all 
possible  tribunals  before  which  to  try  the  wisdom  of  the 
fathers. 

After  all,  perhaps,  it  was  no  want  of  wisdom  in  the 
fathers,  but  only  the  conceit  of  wisdom  in  ourselves,  which 
causes  their  work  to  present  so  "extraordinary  a  specta 
cle."  Indeed,  if  we  infer  the  nature  of  their  work,  not 
from  an  examination  of  what  they  have  actually  done,  but 
from  their'wisdom,  do  we  not  reason  from  our  own  notions 
of  wisdom?  And  are  we  not  in  danger  of  .interpolating 
their  conceptions  with  our  own  devices?  The  better 
method  is  to  listen  to  the  great  teacher,  Time,  which  esti 
mates  their  wisdom  from  the  nature  of  their  work,  and 
not  the  nature  of  their  work  from  their  wisdom. 

The  question  is,  not  what  the  fathers,  as  reasonable 
men,  ought  to  have  done;  but  what  they  have  actually 
done.  Perhaps  their  wisdom,  even  if  perfect  in  itself,  was 
sometimes  held  in  abeyance  by  the  prejudices,  the  pas 
sions,  and  the  interests  by  which  it  was  surrounded.  But, 
for  the  sake  of  argument,  let  us  suppose  that  the  new 
Constitution  was  made  perpetually  binding  on  the  States, 
that  the  right  of  secession  was  excluded ;  and  then  ask 
ourselves,  what  sort  of  spectacle  would  such  a  work  pre 
sent  to  the  minds  of  reasonable  men  ?  Would  it  not  appear 
far  more  extraordinary,  than  if  the  right  of  secession  had 
been  recognized?  Let  us  examine  and  see. 

The  scheme  of  a  perpetual  Union,  excluding  the  right 
of  secession,  proceeded  on  the  supposition,  that  a  perpet- 


IS   DAVIS    A    TRAITOR?  169 

ual  peace,  good  faith  and  good  will,  would  subsist  among 
the  States.  This  was  the  idea  of  Madison.  The  predic 
tions  of  George  Mason  and  others,  in  which  they  foretold 
the  wrongs  and  aggressions  of  the  Northern  States,  if 
armed  with  the  formidable  powers  of  the  new  govern 
ment,*  Mr.  Madison  just  set  aside  as  unfounded  and  un 
charitable  suspicions.f  Now,  in  regard  to  this  point,  we 
need  not  ask  who  was  the  wiser  of  the  two,  George  Mason 
or  James  Madison,  no*  need  we  try  the  question  by  any 
imperfect  notions  of  our  own.  For  Time  has  pronounced 
its  irreversible  verdict  in  favor  of  the  wisdom  of  George 
Mason. 

Again,  as  each  State  bound  its  citizens  to  render  allegi 
ance  to  the  Federal  Government  by  its  own  voluntary  act, 
namely,  the  act  of  accession  to  the  Constitution;  so,  if  by 
her  own  sovereign  will  in  the  same  way  expressed,  she 
may  absolve  them  from  that  allegiance ;  we  can  well  under 
stand  the  reasonableness  of  the  arrangement.  But  if  she 
may  not  secede,  or  withdraw  the  allegiance  of  her  citizens 
from  the  Federal  Government;  then  it  would  be  impossi 
ble  for  them  to  escape  the  crime  of  treason.  For,  although 
the  State  should  be  driven  by  oppression  to  withdraw 
from  the  Union,  her  citizens  would,  according  to  such  a 
scheme,  be  indissolubly  bound  by  a  double  allegiance. 
Hence,  if  they  should  follow  or  obey  their  own  State,  they 
might  be  pursued  and  hunted  down  as  traitors  to  the  Fed 
eral  Government.  Or,  if  forsaking  the  State  to  which 
their  allegiance  was  originally  and  exclusively  due,  they 
should  adhere  to  the  Federal  Government,  they  would  be 
traitors  to  their  own  State,  and  so  regarded.  There 
would  be  no  possible  escape  for  them.  Now,  were  such  a 
scheme  wise,  or  reasonable,  or  just  ?  Would  it  not,  on  the 
contrary,  present  a  monstrous  spectacle  of  cruelty  and 

*  Elliott's  Debates,  vol.  3,  pp.  30-164-149-156-161-164-173-174- 
690. 

f  Ibid.  530-562. 
9 


170  IS   DAVIS   A    TRAITOR? 

oppression  ?  Can  we  believe  that  the  fathers,  in  order  to 
secure  the  liberty  of  their  descendants,  erected  such  an 
engine  of  tyranny?  Can  we  believe  that  they  intended, 
in  any  event,  to  crush  and  grind  their  posterity  thus 
between  the  upper  and  the  nether  millstones  of  the  two 
governments?  But  whatever  they  may  have  intended,  or 
designed,  such  is  the  horrible  character  of  the  two  govern 
ments  in  one,  as  explained  by  the  very  learned  son  in 
question.  If  his  explanation  be  true,  then  it  must  b© 
admitted,  that  the  fathers,  with  all  their  wisdom,  first 
constructed  one  of  the  most  horrible  engines  of  oppression 
the  world  has  ever  seen,  and  then  pronounced  it. a  scheme 
to  "  secure  the  blessings  of  liberty  to  themselves  and  their 
posterity."  But  I  have  too  much  respect  for  the  wisdom  of 
the  fathers  to  construe  their  work  into  any  such  tremen 
dous  and  terrific  engine  of  oppression.  On  the  contrary,  I 
believe  that  as  the  allegiance  of  the  citizen  was  originally 
and  exclusively  due  to  his  State,  and  was  extended  to  the 
Federal  Constitution  only  by  a  sovereign  act  of  his  State; 
so,  by  a  like  sovereign  act,  the  State  may  reclaim  his 
supreme  allegiance.  Otherwise,  the  machine  invented  by 
the  Convention  of  1787,  would  divide  the  citizen  from 
himself;  putting  the  noblest  and  warmest  affections  of  his 
heart  on  the  one  side,  and  his  highest  allegiance  on  the 
other;  so  that,  in  case  of  a  conflict  between  his  State  and 
the  Federal  Union,  he  must  be  inevitably  lacerated  and  torn 
by  the  frightful  collision.  The  fathers  always  admitted, 
that  the  noblest  and  warmest  affections  of  the  citizen 
would  cluster  around  and  cling  to  the  State  in  which  he 
was  born,  and  to  which  his  allegiance  was,  at  first,  exclu 
sively  due.*  Did  they  mean,  then,  that  in  case  of  a  con 
flict  between  a  State  and  the  Union,  and  the  secession  of 
the  former,  the  strongest  affections  of  the  citizen  should 
be  with  the  one,  and  his  supreme  allegiance  with  the 
other.  I  have  too  much  respect  for  the  wisdom  and  the 
*See  The  Federalist,  NOB.  xvii,  xviii,  xix,  &c.,  <fcc. 


IS   DATIS   A   TRAITOR?  171 

goodness  of  the  fathers,  to  impute  so  horrible  an  intention 
to  them;  or  that  they  designed,  in  any  event,  to  set  the 
citizen  against  himself,  and  rend  him  asunder  by  such  a 
conflict  between  the  elements  of  his  nature.  I  believe,  on 
the  contrary,  that  it  is  the  intention  of  the  fundamental  law 
instituted  by  them,  that  the  allegiance  of  the  citizen 
should  go  with  his  affections;  and  cling  to  the  sovereign 
will  of  the  State  in  which  he  lives,  whether  that  leads 
him  into  or  out  of  the  Union. 

"It  is  not  easy,"  said  one  of  the  most  sagacious  of  the 
fathers,  "to  be  wise  for  the  present;  much  less  for  the 
future."  How  true!  and  especially  with  reference  to  the 
institution  of  a  new  government!  Perhaps,  if  the  fathers 
had  only  had  a  little  more  of  this  wisdom  for  the  future, 
they  would  have  more  profoundly  considered  the  great 
question  of  secession,  and  settled  it  beyond  the  possibility 
of  dispute  in  the  Constitution  framed  by  them.  If,  for 
instance,  in  the  solemn  compact  between  the  States,  they 
had  expressly  declared  that  any  one  of  the  sovereign  parties 
to  it  might  secede  at  pleasure ;  this  would,  it  is  believed, 
have  produced  the  most,  happy  result.  The  known  and 
established  fact,  that  the  Union  depended  on  the  will 
of  its  members,  would  certainly  tend  to  beget  that  mutual 
forbearance,  moderation,  good-will,  and  sympathy,  with 
out  which  no  federation  of  States  is  desirable.  The  wis 
dom  of  the  fathers  might,  in  such  case,  have  appeared  far 
less  conspicuous  to  some  of  the  sons;  and  yet  it  might 
have  saved  the  sons  from  the  terrible  war  of  words,  and 
deeds,  and  blood,  by  which  the  civilization  of  the  19th 
century  has  been  so  horribly  disgraced.  It  might  have 
appeared  a  most  "extraordinary  spectacle"  in  theory;  and 
yet,  in  practice,  it  might  have  spared  the  world  the  infi 
nitely  more  extraordinary  spectacle  of  the  war  of  1861. 

I  shall  conclude  my  reflections  on  this  argument,  with 
the  following  judicious  observations  of  Mr.  Spence:  "It 
would  appear,"  says  he,  "the  true  policy  of  such  a  confed- 


172  IS   DAVIS   A   TRAITOR? 

eration  to  remove  all  doubt,  and  carry  out  clearly  tlie 
principles  of  its  origin,  by  openly  declaring  the  right  of 
secession.  Had  this  been  done  from  the  first,  there  would 
probably  have  been  no  secession  this  day.  The  surest 
way  to  end  the  desire  for  any  object,  is  to  give  unlimited 
command  of  it.  Secession  has  mainly  occurred  because  it 
was  denied.  How  beneficial  the  consequence,  had  it  been 
an  admitted  right  for  the  last  forty  years!  In  place  of 
the  despotic  use  of  political  power,  in  contempt  of  the 
feelings  or  interests  of  other  portions  of  the  country, 
whether  of  the  slave-owners  or  monopolists — there  would 
have  been  all  along  a  tempering,  moderating  influence. 
Abolitionism,  in  all  its  extremes  of  virulence,  has  been 
permitted  by  the  North  because  the  South  was  considered 
to  be  fast.  It  might  writhe  under  it,  but  it  must  abide. 
But  for  this  unfortunate  belief,  the  intelligence  of  the 
North  would  have  said,  'If  to  gratify  your  passionate 
opinions,  you  indulge  in  such  language  as  this,  addressed 
to  your  fellow-citizens,  they  will  separate  from  us;  we  will 
not  have  the  Union  destroyed,  at  your  bidding  and  pleas 
ure.'  In  like  manner,  when  the  manufacturers  desired  to 
increase  protection  to  outrageous  monopoly,  that  intelli 
gence  of  the  North  would  have  said  to  them,  'Our  sister 
States  shall  not  be  driven  from  the  Union  in  order  to 
increase  your  profits.'  The  same  rule  will  apply  to  exter 
nal  affairs.  Texas  would  not  have  been  annexed  and  be- 
slaved,  no  Mexican  spoliations — no  war  of  1813 — no 
Ostend  manifestoes  need  have  defaced  the  history  of  the 
country.  Throughout  the  range  of  political  affairs  there 
would  have  been  present  that  influence  so  constantly 
absent — consideration  for  others.  The  sovereignty  of  the 
people  is  a  despotism  untempered  by  division  or  check. 
The  denial  of  secession  has  invited  it  to  act  despotically — 
to  do  simply  as  it  listed,  regardless  of  those  supposed  to 
have  no  escape  from  endurance.  The  more  the  subject  is 
examined,  the  more  plainly  it  will  appear  that  under  an 


IS   DAVIS   A   TRAITOR?  173 

admitted  right  of  secession,  there  would  never  have  grown 
up  to  dangerous  magnitude  those  causes  which  now  pro 
duce, — and  that  in  so  terrible  a  form — the  disruption  of 
the  Union.  Without  those  causes,  had  the  feelings  and 
interests  of  others  been  fairly  and  temperately  considered, 
'the  Union  might  have  existed  as  firmly  this  day  as  at  any 
former  period  of  its  history."* 

Argument  from  the  opinion  of  Mr.  Madison. 

In  the  Biographical  Memoir  of  Daniel  Webster,  prefixed 
to  his  works,  Mr.  Everett  says :  "  The  opinion  entertained 
of  this  speech,  (the  speech  of  1833),  by  the  individual 
who,  of  all  the  people  in  America,  was  the  best  qualified 
to  estimate  its  value,  may  be  seen  from  the  following  let 
ter  of  Mr.  Madison,  which  has  never  before  been  pub 
lished. 

u  MONTPELIER,  March  15tfA,  1833. 

My  Dear  Sir  : — I  return  my  thanks  for  the  copy  of  your  late  very 
powerful  speech  in  the  Senate  of  the  United  States.  It  crushes  nul 
lification,  and  must  hasten  an  abandonment  of  secession." 

Now  on  what  ground  Mr.  Madison  could  have  based 
this  opionion,  at  least  in  so  far  as  it  relates  to  secession,  it 
is  difficult  to  conceive.  The  fundamental  premise  of  Mr. 
Webster,  that  "the  Constitution  is  not  a  compact  between 
sovereign  States,"  and  which  is  adopted  as  the  title  of  his 
•speech,  was  certainly  not  approved  by  Mr.  Madison;  for 
this  premise,  beside  being  in  direct  opposition  to  the  doc 
trine  of  his  whole  life,  is  denied  again  in  the  very  letter 
in  which  the  above  compliment  is  found.  Mr.  Webster 
has,  indeed,  very  little  to  say  against  secession.  His  argu 
ment  is  almost  exclusively  directed  against  "nullification," 
the  point  then  in  debate  between  himself  and  Mr.  Cal- 
houn.  But  the  little  he  has  to  say  against  secession,  is 
based  on  the  idea  that  the  Constitution  is  not  a  compact 
between  sovereign  States.  Every  argument,  and  every 

*  American  Union,  p.  245 — 6. 


174  IS    DAVIS   A   TRAITOR? 

assertion,  levelled  by  him  against  secession  (and  they  are 
but  few  in  number),  have  no  other  than  this  false  founda 
tion.  Hence,  Mr.  Madison  could  not  have  approved  or 
applauded  the  argument  of  Mr.  Webster  against  secession, 
because  he  regarded  his  premise  as  sound ;  for  he  was  most 
profoundly  convinced  that  it  was  false.  On  what  ground, 
then,  could  Mr.  Madison  have  admired  this  argument  ? 

If  the  Constitution  is  a  compact  between  sovereign 
States,  as  Mr.  Madison  always  contended  it  was,  then  Mr. 
Webster  admits,  as  we  have  seen,  that  the  right  of  seces 
sion  follows.  Thus,  this  right  is  conceded  by  Mr.  Web 
ster  to  flow  from  the  premise  which  Mr.  Madison  always 
regarded  as  perfectly  and  unquestionably  true.  How,  in 
the  face  of  such  a  concession,  Mr.  Madison  could  have 
pronounced  the  opinion,  that  Mr.  Webster's  argument 
"must  hasten  the  abandonment  of  secession,"  it  is  exceed 
ingly  difficult  to  conceive.  The  acknowledgment  that 
the  right  of  secession  flows  from  a  position  too  plain  to 
be  denied,  would  tend,  as  one  would  suppose,  to  hasten  its 
adoption,  rather  than  its  abandonment.  How  then  could 
Mr.  Madison  have  said  otherwise? 

The  truth  seems  to  be,  that  Mr.  Madison  was  more 
solicitous  to  preserve  the  integrity  of  the  Union,  than  the 
coherency  of  his  own  thoughts.  He  commends  Lycur- 
gus  for  having  sacrificed  his  life  to  secure  the  perpetuity 
of  the  institutions  he  had  taken  so  much  pains  to  estab 
lish.  *  For  the  same  purpose,  Mr.  Madison  sacrificed,  not 
his  life,  but  his  logic. 

Is  it  not  truly  wonderful,  that  Mr.  Madison  who,  on 
most  subjects,  sees  so  clearly  and  reasons  so  well,  should 
fall  into  such  inanities  about  secession?  From  his  con 
duct,  as  well  as  from  his  confession  in  The  Federalist,  f  it 
is  evident,  that  he  considered  it  a  duty  to  veil  the  idea  of 
this  right,  unless  a  proper  occasion  should  arise  for  its 
assertion.  But  how  imperfectly  his  arguments  and  opin- 

*  Federalist,  No.  xxxviii.  f  No.  xliii. 


IS   DAVIS   A   TRAITOR?  175 

ions  perform  this  high  office  of  concealment!  He  would, 
no  doubt,  have  done  better,  if  better  arguments  against 
the  right  of  secession  could  have  been  found  or  invented. 
As  it  is,  the  ineffable  weakness  of  his  views  in  opposition 
to  the  right  of  secession,  shows  how  high  and  impregna 
ble  is  the  position  which  that  right  occupies. 

Mr.  Madison  greatly  feared  that  Virginia  and  New  York 
would,  in  their  ordinances  of  ratification,  expressly  reserve 
the  right  to  secede  from  the  Union.  This  apprehension 
is  most  vividly  set  forth  in  his  correspondence  with  Mr. 
Hamilton,  in  regard  to  the  proposed  conditional  ratifica 
tion  of  New  York ;  from  which  it  has  been  most  confident 
ly  inferred,  that  neither  Virginia  nor  New  York  did  reserve 
such  right.  But  what  Mr.  Madison  desired,  and  what 
those  States  did,  are  two  very  distinct  things.  If  we 
really  wish  to  know  what  those  States  did,  we  should, 
it  seems  to  me,  look  at  their  recorded  acts,  rather  than  at 
what  Mr.  Madison  desired  them  to  do.  The  conditional 
ratification  of  Virginia  was  in  direct  opposition  to  the 
wishes  of  Mr.  Madison.  His  wish,  then,  however  great 
his  influence,  could  not  always  control  the  action  of  his 
own  State,  much  less  that  of  New  York. 

Hamilton  and  Madison  both  Desired  a  strong  "national 
government."  It  was  owing  to  their  influence,  that  the 
first  resolution  of  the  Convention  of  '87  in  favor  ^  such  a 
government,  was  passed.  But,  as  we  have  seen  ;*  although 
that  resolution  was  afterward  set  aside  by  the  Convention, 
Mr.  Webster  and  Judge  Story  argue  from  its  momentary 
existence,  that  the  Convention  of  '87  actually  established 
"a  national  government."  In  like  manner,  it  is  most 
confidently  inferred  from  the  wish  of  Mr.  Madison,  ex 
pressed  in  his  private  correspondence,  that  neither  Vir 
ginia  nor  New  York  expressly  reserved  the  right  of 
secession  in  its  ordinance  of  ratification!  Was  Mr.  Madi 
son's  wish  the  law  of  Virginia  and  of  New  York  ?  And  if 

*  Chap.  ir. 


176  IS   DAVIS   A   TRAITOR? 

we  want  to  know  what  those  States  actually  did,  must 
Mr.  Madison's  wish  pass  for  everything,  and  their  solemnly 
recorded  acts  for  nothing? 

Mr.  Madison,  as  his  correspondence  shows,  was  extreme 
ly  anxious  to  prevent  a  conditional  ratification  of  the  Con 
stitution  in  New  York,  as  well  as  in  Virginia.  He  even 
went  so  far  as  to  advance  the  extraordinary  proposition, 
that  a  conditional  ratification  would  be  "no  ratification  at 
all,"  and  would  "not  make  New  York  a  member  of  the 
new  Union."  But  after  Virginia  had  ratified  the  Consti 
tution  on  the  express  condition,  that  its  powers  should 
not  be  perverted  to  her  injury  or  oppression,  and  had 
reserved  the  right  to  resume  the  delegated  powers  in  case 
that  condition  should  be  violated;  Mr.  Madison  retraced 
his  steps,  and  freely  admitted  that  Virginia  was  really  in 
the  Union !  He  writes  to  Hamilton  at  once,  and  to  Wash 
ington,  in  order  to  do  away  with  the  impression,  that  a  con 
ditional  ratification  is  "no  ratification  at  all,"  and  would 
not  make  any  State  a  "member  of  the  new  Union."  In 
regard  to  the  conditional  ratification  of  Virginia,  he  says: 
it  contains  "some  plain  and  general  truths,  that  do  not  impair 
the  validity  of  the  act." 

Now  from  these  words  of  Mr.  Madison,  it  has  been 
strenuously  argued,  that  Virginia  did  not  reserve  the  right 
to  resume  the  powers  she  had  delegated  to  the  Federal 
Government!  It  is  true,  as  Mr.  Madison  said,  that  the 
plain  trut&s  referred  to,  did  not  impair  the  validity  of  the 
Virginia  act  of  ratification.  No  one  has  ever  doubted  the 
validity  of  that  act;  or  that  it  made  Virginia  a  member  of 
the  new  Union.  Nor  could  any  one  ever  dream  of  doubt 
ing  such  a  thing;  unless  he  had  previously  embraced  Mr. 
Madison's  most  extraordinary  proposition,  that  a  condi 
tional  ratification  is  no  ratification  at  all.  But,  while  there 
is  no  question  whatever  as  to  the  validity  of  the  act,  it  is  de 
nied,  that  it  was  unconditionally  and  eternally  binding  on 
the  State  of  Virginia,  or  that  it  could  never  be  repealed  by 


IS    DAVIS    A    TRAITOR?  177 

the  sovereign  power  by  which  it  was  enacted.  Is  it  not 
wonderful,  then,  that  Mr.  Madison's  words  merely  asserting 
the  validity  of  the  act  in  question,  which  no  one  has  ever 
denied,  should  be  so  confidently  quoted  to  prove,  that  the 
act  must,  in  any  event,  stand  forever,  unrepealed  and 
unrepealable,  by  the  power  by  which  it  was  ordained? 

Now  what  is  "the  plain  and  general  truth"  to  wrhich 
Mr.  Madison  refers  as  contained  in  the  Virginia  ordinance 
of  ratification?  It  is  the  truth,  that  the  powers  delegated 
to  the  Federal  Government  may  be  resumed  in  case  of 
their  perversion ;  and  that  they  may  be  resumed  by  the 
authority  which  delegated  them.  This  was  a  plain  truth 
then,  and  this  is  a  plain  truth  now.  It  is  indeed  universally 
conceded.  Neither  Story,  nor  Webster,  nor  Everett,  nor 
Motley,  has  one  syllable  to  say  against  this  plain  and 
incontestable  truth.  Hence,  if  Virginia  delegated  powers 
to  the  Federal  Government ;  then  Virginia,  and  Virginia 
alone,  had  the  right  to  resume  those  powers.  This  would 
have  been  the  case,  even  if  no  express  reservation  of  that 
right  had  been  contained  in  her  ordinance  of  ratification. 
But  did  Mr.  Madison  deny,  that  the  powers  in  question 
were  delegated  by  the  State  of  Virginia?  If  so,  then  he 
denied  a  plain  fact;  and  a  fact,  too,  which  he  invariably 
and  earnestly  proclaimed  from  the  beginning  to  the  end 
of  his  career.  Even  if  he  denied  that  fact  by  implication, 
this  would  have  proved  only  his  inconsistency,  and  fur 
nished  another  instance  of  the  blinding  influence  of  his 
extreme  desire  to  veil  the  right  of  secession. 

Argument  from  the  opinion  of  Hamilton. 

"However  gross  a  heresy,"  says  Hamilton,  "it  may  be 
to  maintain,  that  a  party  to  a  compact  has  a  right  to  revoke 
that  compact,  the  doctrine  itself  has  had  respectable  advo 
cates."  *  This,  it  should  be  observed,  is  said  in  relation  to 
the  old  Articles  of  Confederation,  which  are  universally 

*  Federalist,  No.  xxii. 
9* 


178  IS    DAVIS   A   TRAITOR? 

• 

admitted  to  have  formed  a  compact  between  sovereign 
States.  It  was,  then,  the  opinion  of  Hamilton,  that  a 
State  had  no  right  to  secede  from  a  confederacy  of  States, 
or  from  the  compact  by  which  they  are  united.  If  he 
means  to  assert,  that  it  has  no  natural  or  moral  right  to 
secede  at  pleasure  from  a  compact,  I  have  at  present  no 
controversy  with  him.  But  if  he  means  that  it  has  no 
legal,  or  constitutional  right  to  do  so,  then  his  own  opin 
ion  is  "a  gross  heresy,"  which  has  but  few  respectable 
advocates  at  the  present  day. 

For,  as  we  have  already  seen,  both  Story  and  "Webster 
concede,  that  the  constitutional  right  of  secession  belongs 
to  States,  which  are  united  by  a  compact.  Now,  after 
such  a  concession,  is  it  not  too  late  to  quote  the  opinion  of 
Hamilton  to  prove,  that  the  very  inference  conceded  is  "a 
gross  heresy "?  Yet  this  is  done  by  Mr.  Justice  Story. 
In  one  paragraph,  he  admits  that  if  the  Constitution  is  a 
compact  between  the  States,  then  each  State  may  secede 
from  that  compact  at  pleasure;  and  yet,  in  the  very  next 
paragraph,  he  proves  out  of  the  Federalist,  that  *  "  even 
under  the  confederation,"  which  is  admitted  to  have  been 
founded  on  a  compact  between  the  States, •(•  "it  was 
deemed  a  gross  heresy  to  maintain,  that  a  party  to  a  com 
pact  has  a  right  to  revoke  that  compact]'1  J  or  to  set  it  aside 
at  pleasure.  Thus  the  very  inference  which  he  admits 
in  one  breath,  he  pronounces  a  gross  heresy  in  the  next, 
and  proves  it  to  be  such  by  the  authority  of  Hamilton ! 

The  doctrine  which  both  Story  and  "Webster  have  been 
constrained  to  admit,  is  no  doubt  entitled  to  more  consid 
eration  than  the  naked  and  unsupported  opinion  of  Ham 
ilton.  This  opinion  seems,  indeed,  to  have  grown  out  of 
has  deep  and  intense  desire  to  consolidate  the  "Union,  rath 
er  than  form  his  legal  studies  and  knowledge.  He  was 
only  thirty  years  of  age  when  the  Federalist  was  written  ; 
and  his  life,  with  the  exception  of  four  years,  had  been 

*  Vol.  i,  p.  288.  tNo.  xx~iiT~  J  Vol.  i,  p.  290. 


IS   DAVIS   A   TRAITOR?  179 

passed  in  the  active  duties  of  the  camp,  or  in  his  college 
studies.  Hence,  however  great  his  powers,  his  knowledge 
of  jurisprudence,  and  of  the  opinions  of  the  learned,  must 
have  been  exceedingly  limited,  when  compared  with  those 
who  have  devoted y  their  -lives  to  this  study.  If,  then, 
Story  and  Webster  are  constrained  to  admit  the  right  of 
a  State  to  secede  from  a  confederacy  bound  by  a  mutual 
compact ;  this  may  surely  be  taken  as  an  indication  of 
the  real  teachings  of  the  law  on  the  point  in  question,  and 
regarded  as  a  higher  authority,  than  the  bare  opinion  of 
Hamilton.  This  would  be  so,  even  if  no  progress  had 
been  made  in  the  science  of  international  law  since  the 
time  of  Hamilton ;  but,  in  fact,  there  has  been  great  pro 
gress  in  this  science  during  the  present  century;  especi 
ally  in  regard  to  the  doctrine  of  compacts  between  States. 
Enlightened  by  the  principles  of  that  doctrine,  Mr.  Jus 
tice  Story  could  not  deny  the  right  of  one  of  the  parties 
to  secede  from  such  "a  compact."  Hence,  he  attempted 
the  more  than  herculean  labor  of  recasting  the  whole 
political  history  of  his  country,  and  moulding  it  into  con 
formity  with  his  wonderful  hypothesis,  that  the  Constitu 
tion  of  the  United  States  is  not  a  compact  between  States 
at  all.  He  first  asserts  truly,  that  a  State  may  secede 
from  such  a  compact,  and  then  proves  out  of  Hamilton 
that  his  own  assertion  is  "  a  gross  heresy"  !  "  That  gross 
heresy,"  says  Hamilton,  "has  had  respectable  advocates." 
Mr.  Justice  Story  himself  is  one  of  those  advocates.  Nor 
is  this  all.  The  Convention  of  1787  advocated  the  same 
heresy;  and,  moreover,  embodied  it  in  their  legislation. 
Hamilton  insisted  in  that  Convention,  that  the  States  had 
no  right  to  revoke  the  existing  compact  between  them, 
or  to  secede  from  it  in  order  to  form  another,  without 
the  consent  of  each  and  every  State  in  the  Union.  But 
his  opinion  was  overruled  by  the  Convention;  and  the 
States  did,  in  pursuance  of  the  decision  of  the  Convention, 
withdraw  from  the  existing  compact  to  form  a  new  one. 


180  IS   DAVIS   A   TRAITOR? 

Mr.  Hamilton  may  have  been  right,  and  the  States  may 
have  been  wrong;  but,  however  this  may  be,  their  decis 
ion  established  the  supreme  law  of  the  land.  The  advo 
cates  of  the  right  of  some  of  the  parties  to  a  compact 
between  States  to  revoke  that  compact,  or  to  withdraw 
from  it,  may  not  have  been  as  respectable  as  the  opponents 
of  this  doctrine;  it  is  certain  that  they  prevailed  in  the 
Convention  of  1787,  and  embodied  their  own  views  in  the 
legislation  of  the  United  States.  That  legislation  should 
be  our  guide,  not  the  defeated  opinion  of  Mr.  Hamilton. 
Or,  at  least  if  we  happen  to  believe  that  legislation  to 
have  been  right,  and  if  in  conformity  with  the  opinion  of 
Mr.  Justice  Story,  we  happen  also  to  believe  that  a  State 
may  secede  from  a  compact  between  States;  may  we 
not  humbly  hope,  that  this  will  not  be  deemed  so  "gross  a 
heresy"  as  to  be  treated  as  treason  and  rebellion? 

Argument  from  the  very  Idea  of  a  Nation. 

The  "very  idea  of  a  nation,"  it  is  said,  is  utterly  incon 
sistent  wTith  the  right  of  secession.  But  what  is  a  nation? 
"It  is  a  body  politic,"  we  are  told,  "independent  of  all 
others,  and  indissolubly  one.  That  is,  indissoluble  at  the 
mere  option  of  its  constituent  pars."*  Thus,  the  w^hole 
question  is  begged,  and  the  whole  controversy  completely 
settled,  by  the  definition  of  •'  the  very  idea  of  a  nation." 

How  great  the  triumphs  of  such  logic,  and  how  w^onder- 
ful  the  displays  of  such  genius!  Setting  out  from  "the 
very  idea  of  a  nation"  in  the  abstract,  and,  absolutely 
unembarrassed  by  any  other  idea  .or  knowledge  in  the  wide 
world,  this  argument  just  reaches,  at  one  simple  bound, 
the  conclusion,  that  "as  the  Abberville  district  cannot 
secede  from  South  Carolina;  so  South  Carolina  cannot 
secede  from  the  United  States;"  a  profound  view  and 
striking  illustration  which  the  President  from  Illinois  bor 
rowed  from  the  Preacher  of  Princeton. f 

*  Rev.  Dr.  Hodge  on  the  State  of  the  Country,  p.  24. 

f  Enlightened  by  the  profound  view  of  his  reverend  guide,  Mr. 


IS    DAVIS    A    TRAITOR?  181 

Argument  from  the  purchase  of  Louisiana,  Florida,  &c. 

It  is,  we  are  told,  absurd  to  suppose  that  the  people 
would  have  expended  so  much  money  for  the  purchase  of 
Louisiana,  Texas,  and  Florida,  if  those  States  could  secede 
from  the  Union.f  It  is  not  at  all  probable,  that  those 
territories  were  purchased  under  the  belief  that  they 
would  desire  to  secede,  whether  they  possessed  the  right 
to  do  so  or  not.  And  besides,  it  might  be  easily  shown, 
that  long  being  before  those  States  did  secede,  the  govern 
ment  of  the  United  States  had  realized  far  more  from  them 
than  she  gave  for  them ;  which  was  only  a  few  millions  of 
dollars.  Hence,  even  on  the  theory  and  the  practice  of 
secession,  the  purchase  was  far  from  being  absurd.  On 
the  contrary,  it  was  a  highly  profitable  bargain  j  and  in 
order  to  justify  it,  or  to  show  that  it  was  reasonable,  it  is 
not  at  all  necessary  to  suppose  that  the  sovereign  peoples 


Lincoln,  with  a  naive  originality  all  his  own,  might  well  have  asked, 
what  is  the  difference  between  a  county  and  a  State  ?  Is  not  a  coun 
ty  a  little  State,  and  a  State  a  big  county  ?  One  striking  difference 
must  have  occurred  to  him  in  the  course  of  his  reading  ;  the  differ 
ence,  namely,  that  a  State  is  spelt  with  a  large  S,  and  a  county  with 
a  small  c.  He  must  also  have  observed  that  a  State  is  sometimes 
called  *'  Sovereign."  But  whether  it  is  called  Sovereign  because  it 
is  spelt  with  a  large  S,  or  spelt  with  a  large  S  because  it  is  called 
sovereign,  is  one  of  the  nice  questions  in  the  science  of  government, 
which  he  does  not  seem  to  have  very  fully  considered,  or  positively 
decided.  He  had  evidently  discovered,  for  he  tells  us  so  himself, 
that  a  State  is  usually  larger  than  a  county  in  the  extent  of  its  terri 
tory  ;  a  discovery  which,  perhaps,  led  to  the  profound  and  original 
reflection,  that  the  United  States  have  been,  and  must  continue  to  be, 
one  State  or  Nation,  because  their  territory  is  one.  It  is  to  be  hoped, 
indeed,  that  these  sovereign  States  or  counties,  as  the  case  may  be, 
shall  continue  to  be  united,  and  that  order,  tranquility,  and  happiness 
shall  once  more  bless  their  Union.  But  if  so,  must  not  something 
beside  the  owe  territory  help  to  produce  the  happy  result?  Have 
not  simple  confederations  existed  on  the  same  territories?  Nay, 
have  not  some  twenty  distinct  nationalities  long  existed  on  the  terri 
tory  of  Europe  ?  We  may,  then,  hardly  trust  the  reflection,  however 
profound,  that  one  territory  is  in  itself  a  sufficiently  active  and  pow 
erful  cause  to  produce  one  very  big  State,  or  county,  covering  a 
whole  continent. 

f  Hodge  on  the  State  of  the  Country,  p.  28. 


182  IS    DAYIS    A   TRAITOR? 

of  those  States,  with  their  Constitutional  rights  and  priv 
ileges,  were  also  purchased  with  the  pitiful  sum  paid  for 
their  annexation  to  the  United  States.  They  were  admit 
ted  as  sovereign  States,  with  all  the  rights  of  the  original 
parties  to  the  compact;  and  as  such  were  entitled  to  the 
full  benefit  of  all  its  provisions. 

Indeed,  this  ad  captandum  argument  appears  exceeding 
ly  weak,  if  not  absolutely  ridiculous.  Can  any  purchases 
made  by  any  parties  to  a  compact,  alter  the  terms  of  that 
compact,  or  make  it  more  binding  that  it  was  before  ?  If  a 
State  retained  its  sovereignty  in  the  Union,  and,  conse 
quently,  had  a  right  to  resume  the  powers  which  it  had 
delegated  to  the  Federal  Government ;  this  right  was  not 
affected  by  the  purchase  of  Louisiana,  or  Florida.  To  pur 
chase  those  Territories  is  one  thing,  and  to  sell  the  sover 
eignty  of  each  and  every  State  in  the  original  Union  is  quite 
another.  If  any  State  should  withdraw  from  the  original 
compact,  and  thereby  dissolve  the  Union  as  to  itself;  then 
the  purchase  of  such  Territories  should  be  considered  in 
the  final  settlement  between  the  parties.  But  to  argue, 
that  they  were  indissolubly  and  eternally  bound  together 
because  they  made  such  purchases,  seems,  to  say  the  least, 
a  little  ridiculous. 

Argument  from  Analogy. 

How  wonderful  soever  it  may  seem,  Mr.  Justice  Story 
argues  from  analogy  as  follows:  As  an  individual  has  no 
right  to  secede  from  a  State  government;  so  a  State  has  no 
right  to  secede  from  the  government  of  the  Union.  Now 
this  argument  proceeds  on  the  supposition,  that  a  sover 
eign  State  bears  the  same  relation  to  the  Federal  Govern 
ment,  which  it  concurred  with  other  States  in  creating, 
that  a  county,  nay,  that  an  individual,  bears  to  a  State. 
Mr.  Justice  Story  was  far  too  learned  to  endorse  so  mon 
strous  a  heresy  explicitly;  but  it  is,  nevertheless,  tacitly 
assumed  as  the  basis  of  his  argument  from  analogy  against 


IS    DAVIS    A    TRAITOR?  183 

the  right  of  secession.  His  whole  theory  of  the  Constitu 
tion  points,  it  is  true,  to  the  conclusion  so  openly  avowed 
by  the  Eev.  Dr.  Hodge  and  Mr.  Lincoln,  which  views  a 
State  as  merely  a  county  of  one  great  consolidated  nation; 
but  he  never  reached  this  conclnsion  himself,  except  sur 
reptitiously,  as  in  the  above  argument  from  analogy. 

But  even  admitting  this  false  conclusion  as  a  postulate? 
the  argument  of  Judge  Story  is  by  no  means  as  conclusive 
as  it  appears  to  his  own  mind.  For  the  right  of  an  indi 
vidual  to  secede  from  a  State  government,  is  daily  exer 
cised  by  some  one  or  other  in  every  part  of  the  world. 
An  individual  cannot,  it  is  true,  remain  under  the  govern 
ment  of  a  State,  continuing  to  enjoy  its  protection,  and,  at 
the  same  time,  refuse  to  obey  its  mandates.  But  this  were 
nullification,  not  secession.  The  only  way  in  which  an  indi 
vidual  can  secede  from  a  State,  is  to  withdraw  from  the 
limits  of  its  dominion ;  and  this  right  is  daily  exercised  in 
every  part  of  the  civilized  world,  without  being  called  in 
question  by  any  one.  The  Puritans  themselves,  by  whom 
Massachusetts  was  originally  settled,  withdrew  from  the 
government  of  Great  Britain;  and  quietly  marched  off, 
undisturbed  by  his  Majesty,  first  into  Holland,  and  then 
into  the  New  World.  Now  suppose  this  right  had  been 
denied  to  them?  Suppose  fire  and  sword  had  been  used  to 
compel  the  Pilgrim  Fathers,  those  meek  and  holy  apostles 
of  freedom,  to  remain  under  the  government  they  detested; 
would  they  not  have  made  the  world  ring  with  their  out 
cries  at  the  perpetration  of  such  injustice  and  tyranny? 
But  they  were  allowed  to  withdraw  to  the  New  World ; 
and  there  set  up  the  government  of  their  choice.  The 
colony  of  Massachusetts  Bay,  then,  owed  its  existence  to 
the  acknowledged  right  of  individuals  to  secede  from  the 
government  of  a  State,  and  enjoy  one  whose  "powers  are 
deriyed  from  the  consent  of  the  governed." 

But  a  State,  united  m  a  confederacy  with  other  States, 
can  secede  from  the  government  of  the  union,  without  the 


184  IS    DAVIS    A    TRAITOR? 

necessity  of  changing  its  location.  This  makes  a  differ 
ence  in  the  exercise  of  the  right,  though  not  in  the  right 
itself.  It  is  indeed  quite  impossible  for  a  whole  State,  or 
people,  to  change  its  location,  or  abandon  their  homes. 
If  the  Southern  States  could  have  done  so,  the  exodus 
would,  no  doubt,  have  been  most  gratifying  to  some  of  the 
descendants  of  the  Pilgrim  Fathers  of  New  England. 
This  is  evident  from  the  eloquent  address  of  Mr.  Henry 
Ward  Beecher  to  the  excited  thousands  of  Exeter  Hall  in 
1863.  In  reply  to  the  question,  "Why  not  let  the  South 
go?"  he  exclaimed,  "O  that  the  South  would  go!  but  then 
they  must  leave  us  their  lands."  If  they  had  only  left  their 
lands  and  homes,  and  plunged  into  the  gulf  of  Mexico; 
this  great  enemy  of  secession  would  have  hailed  the  event 
as  one  most  auspicious  for  the  spread,  the  aggrandizement, 
and  the  glory  of  the  race  to  which  he  belongs.  It  would 
have  appeared  to  him,  no  doubt,  like  the  herd  of  swine 
which,  being  possessed  of  devils,  madly  rushed  into  the 
sea,  and  disappeared  from  the  world.  But  when  they 
seceded,  without  proposing  to  leave  their  lands  behind; 
this  made  all  the  difference  imaginable ;  being  an  outrage 
ous  violation  of  one  of  the  great  fundamental  articles  of 
the  Puritan  creed,  which,  in  early  times,  was  expressly 
set  forth  by  the  Colony  of  Connecticut  in  solemn  conclave 
assembled.  It  was  then  and  there  decided,  that  "the 
earth  is  the  inheritance  of  the  saints  of  the  Lord;"  the 
saints  having,  in  their  declaration,  as  is  believed,  an  eye 
to  the  beautiful  locations  and  lands  of  the  Indians.  It  is 
certain,  if  we  may  judge  from  the  speech  of  Mr.  Beecher 
in  Exeter  Hall,  that  some  of  the  most  influential  of  the 
saints  had  a  longing  and  passionate  eye  for  the  beautiful 
lands  of  the  sunny  South. 

The  truth  is,  that  every  constitutional  compact,  whether 
between  the  people  of  a  single  State,  or  between  sovereign 
States  themselves,  forms  a  voluntary  association;  the  one 
between  individuals,  and  the  other  between  sovereign 


IS    DAVIS    A    TRAITOR?  185 

States.  Hence,  if  the  right  of  secession  be  denied  in 
either  case,  and  the  denial  enforced  by  the  sword  of  coer~ 
cion;  the  nature  of  the  polity  is  changed,  and  freedom  is  at 
an  end.  It  is  no  longer  a  government  by  consent,  but  a  gov 
ernment  of  force.  Conquest  is  substituted  for  compact ,  and  the 
dream  of  liberty js  over. 

No  man  has  contributed  more  to  this  dire  result,  than 
Mr.  Justice  Story,  who  not  only  exhausted  all  the  stores 
of  his  own  erudition,  and  exerted  all  the  powers  of  his  own 
inind,  to  prove  that  the  Constitution  was  not  a  compact 
between  the  States,  but  also  enlisted  the  great  powers 
and  eloquence  of  Mr.  Webster  in  the  advocacy  of  the 
same  monstrous  heresy.  This  concealed  the  great  funda 
mental  principle  of  the  Constitution,  and  kept  out  of  view 
the  all-important  truth  laid  down  by  Mr.  Mill,  that  the 
very  first  condition  necessary  to  a  desirable  federation  of 
States,  "  is  a  sufficient  amount  of  sympathy  among  its 
populations."  Nor  is  this  all.  His  theory  of  the  Consti 
tution  fell  in  with  the  corrupt  and  the  corrupting  tendency 
of  the  age;  the  tendency,  namely,  to  deny  the  sacred  obli 
gation  of  "  THE  COMPACT  OF  THE  CONSTITUTION."  For  how 
can  any  compact  be  held  sacred,  which  is  held  not  to  be  a 
compact  at  all,  but  only  the  emanation,  or  creature,  of  the 
sovereign  will  by  which  its  restraints  are  abhorred?  May 
not  the  creator  do  what  he  pleases  with  its  own?  May 
not  the  one  great  nation,  the  one  sovereign  people  of 
America,  take  some  little  liberties  with  the  work  of  its 
hands,  instead  of  being  scrupulously  bound  by  it  as  a  com 
pact  between  the  States?  Nay,  may  it  not  take  some 
little  liberties  with  the  rights  of  the  States  themselves; 
since  the  States,  as  well  as  the  Constitution,  were  created 
by  its  own  sovereign  will  and  pleasure  ?  May  it  not,  in 
short,  treat  the  States  as  counties  ? 

It  is  possible,  -indeed,  that  no  learning,  or  logic,  or  elo 
quence  could  have  resisted  this  terrible  tendency,  or  stem 
med  the  mighty  torrent  of  corruption  it  continually  fed 


186  IS    DAVIS   A   TRAITOR? 

and  augmented.  But  this  is  no  reason  why  learning,  and 
logic,  and  eloquence  should  have  favored  its  progress. 
That  progress  was  slow,  but  sure.  All  power  slowly  grav 
itated  toward  the  federal  centre,  and  was  there  consolida 
ted  by  false  theories  of  the  Constitution.  In  the  tower 
ing  audacity  of  that  central  power,  assuming  to  itself  all 
the  glories  of  the  one  grand  nation,  it  was  gradually  for 
gotten  that  honor,  and  justice  in  the  observance  of  the 
original  compact,  (no  longer  regarded  as  a  compact,)  and 
mutual  sympathy  among  the  peoples,  it  was  intended  to 
unite,  are  the  indispensable  conditions  of  a  free  and  hap 
py  Federation  of  States;  and  for  these  sacred  ties  of  "the 
glorious  Union,"  were  substituted  the  sacrilegious  bonds 
of  fraud,  force,  and  ferocity.  It  is  no  wonder,  then,  that 
secession  should,  in  the  end,  have  been  regarded  as  the 
greatest  of  all  crimes;  since  the  Union  was  then  held 
together,  not  by  the  mutual  sympathy  or  the  conciliated 
interests  of  its  peoples,  but  by  "the  cohesive  power  of 
public  plunder."  Mr.  Justice  Story,  be  it  said  to  his  eter 
nal  shame,  took  the  lead  in  constructing  the  theory  of  that 
tremendous  scheme  of  despotic  power,  and  the  politicians 
of  Massachusetts  in  reducing  it  to  practice.  John  C.  Cal- 
houn,  on  the  contrary,  lived  and  died  in  opposing  all  the 
powers  of  his  gigantic  intellect  to  its  overwhelming  tor 
rents,  both  in  theory  and  in  practice. 


CHAPTER    XYIII. 

Was  Secession  Treason? 

THE  doctrine  of  secession  consists  of  two  propositions : 
the  first  asserts  that  the  Constitution  was  a  compact 
between  the  States;  and  the  second  that  a  State,  or  one 
of  the  parties,  had  a  right  to  secede  from  such  a  compact. 
The  second  proposition  is  simply  an  inference  from  the 
first.  Now,  if  secession  is  at  all  tainted  with  treason,  the 
crime  must  lurk  in  the  one  or  the  other  of  these  proposi 
tions. 

Is  it  treasonable,  then,  to  assert  that  the  Constitution 
was  a  compact  between  the  States,  or  the  members  of  the 
Union  ?  No  one,  it  is  presumed,  will  venture  on  so  bold 
an  assertion;  for,  as  we  have  seen,  this  was  the  doctrine 
of  the  fathers  of  the  Constitution  themselves.  It  has  been 
shown,  by  an  articulate  reference  to  their  writings,  that  it 
was  clearly  and  unequivocally  the  doctrine  of  Madison, 
and  Morris,  and  Hamilton,  as  well  as  of  other  celebrated 
architects  of  the  Constitution.  Who,  then,  will  pronounce 
it  treason,  or  treasonable?  The  Federalist,  in  submitting 
the  Constitution  to  the  people  and  in  pleading  the  cause 
of  its  adoption,  did  not  hesitate  to  say,  as  a  fact  then  per 
fectly  well  and  universally  known,  that  the  Constitution 
was, "the  compact"*  to  which  "the  States  as  distinct  and 
independent  sovereigns'^  were  the  parties.  Did  The  Fed 
eralist  espouse  treasonable  sentiments?  Both  Hamilton 
and  Madison,  the  two  great  architects  of  the  Constitution, 

*  No.  xxix.    f  No.  xl  and  No.  Ixxxv. 


188  IS    DAVIS    A   TRAITOR? 

most  earnestly  and  eloquently  recommended  it  to  the  peo 
ple  in  The  Federalist  and  elsewhere  as  THE  COMPACT 

BETWEEN  THIRTEEN    SOVEREIGN    AND    INDEPENDENT    STATES. 

Is  that  doctrine  treason,  then?  Is  there  the  least  sign,  or 
symptom,  or  shadow  of  treason  connected  with  that  senti 
ment  of  the  fathers?  Are  those  "untrue  to  their  coun 
try,"  who  say,  with  all  the  most  illustrious  fathers  of  the 
Union,  that  the  Constitution  was  a  compact  between 
the  States?  On  the  contrary,  are  not  those  untrue  to 
themselves,  to  their  country,  and  to  their  God,  who,  in  the 
midst  of  so  many  unquestionably  proofs  on  all  sides  around 
them,  can  assert  that  the  Constitution  is  not  a  compact? 
Is  it  "the  dialect  of  treason"  to  say  that  "the  States 
acceded  to  the  Constitution?"  In  other  words,  is  the 
language  of  Wilson,  and  Morris,  and  Eandolph,  and  Frank 
lin,  and  Jefferson,  and  Washington,  to  be  denounced  as 
"the  dialect  of  treason?"  Is  it  treason  to  understand  the 
Constitution  as  it  was  understood  by  the  great  patriots 
and  statesmen  from  whose  wisdom  it  proceeded?  Is  it 
treason  to  adhere  to  their  views,  sentiments,  and  lan 
guage?  Or  is  it  loyalty  to  depart  from  their  views,  senti 
ments,  and  language;  denouncing  them  as  the  inventions 
of  modern  rebels,  and  blood-thirsty  traitors?  No  one  can, 
or  will,  venture  to  answer  this  question  in  the  affirmative. 
Ignorance  and  passion  may  have  done  so  in  times  past. 
But  who  can  read  the  history  of  his  country,  who  can 
behold  the  great  fact,  that  THE  CONSTITUTION  is  A  COMPACT 

BETWEEN  THE  STATES    BLAZING  ALL  OVER  ITS  AMPLE  PAGES ; 

nay,  written  there  by  the  fathers  of  the  Republic  them 
selves;  and  then  deliberately  pronounce  it  a  treasonable 
sentiment?  Can  any  man  do  so?  Has  any  man  sufficient 
strength  of  continence  for  such  an  achievement  ?  If  so, 
then  indeed  must  his  front  of  brass,  and  his  heart  of  iron, 
forever  remain  an  incomprehensible  mystery  to  all  rea 
sonable  men.  Nay,  if  any  party  or  majority,  aided  by 
the  united  strength  of  all  their  countenances,  should  pro- 


IS    DAVIS    A   TRAITOR?  189 

nounce  such  a  fact  treasonable ;  this  would  only  prove  that 
they  must  have  been  ignorant  of  the  history  of  their  coun 
try.  But,  whether  from  ignorance,  or  from  malice,  or 
from  both,  shall  it  ever  be  the  lot  of  American  citizens  to 
live  in  a  land  in  which  truth  shall  be  treason,  and  history 
rebellion?  Shall  it  ever  come  to  this — O  ye  blessed  spirits 
of  departed  heroes  and  patriots! — shall  it  ever  come  to 
this,  that  a  dungeon  and  a  halter  awaits  the  man  who  may 
have  the  most  devoutly  cherished  thy  sentiments,  and 
the  most  implicitly  trod  in  thy  footsteps? 

No!  it  will  be  admitted,  that  the  doctrine  of  the  fathers 
is  not  treason.  Whether  that  doctrine  be  true  or  false,  it 
will  be  admitted,  that  it  is  entitled  to  the  respect  of  all 
who  respect  the  founders  of  the  Eepublic.  Even  if  the 
fathers  did  not  understand  their  own  work, — a  thought 
wrhich  is  itself  almost  akin  to  treason — it  is  certainly  not 
an  unpardonable  heresy  to  agree  with  them,  or  to  adopt 
their  view  of  the  Constitution  of  the  United  States. 

"Will  it  be  said,  then,  that  it  is  treasonable  to  assert,  that 
a  State  may  secede  from  a  compact  between  States?  If 
so,  then  Story  and  "Webster  were  both  traitors ;  for,  as  we 
have  over  and  over  again  seen,  these  most  admired 
expounders  of  the  Constitution  expressly  concede,  that  a 
State  may  secede  at  pleasure  from  such  a  compact.  But, 
here  again,  even  if  Story  and  Webster  were  mistaken  in 
this  principle  of  law;  it  is  surely  absurd  to  denounce  such 
an  error  as  treason  or  rebellion. 

Nor  is  this  all.  Precisely  the  same  inference  is  drawn 
by  another  great  expounder  of  the  Constitution,  namely, 
by  William  Eawle,  of  Philadelphia.  The  legal  opinion  of 
Mr.  Eawle  is  entitled  to  great  respect.  Mr.  Buchanan,  late 
President  of  the  United  States,  speaks  of  him  as  follows: 
"The  right  of  secession  found  advocates  afterwards  in 
men  of  distinguished  abilities  and  unquestioned  patriotism. 
In  1825  it  was  maintained  by  Mr.  William  Eawle,  of  Phil 
adelphia,  an  eminent  and  universally  respected  lawyer,  in 


190  IS  DAVIS   A  TRAITOR? 

the  23d  [32d]  chapter  of  his  'View  of  the  Constitution  of 
the  United  States.'  In  speaking  of  him  his  biographer 
says  that  'in  1791  he  was  appointed  District  Attorney  of 
the  United  States;'  and  'the  situation  of  Attorney  General 
was  more  than  once  tendered  to  him  by  Washington,  but 
as  often  declined,'  for  domestic  reasons."*  Now  Mr.  Eawle 
wrote  his  "  View,"  not  as  a  partizan,  but  simply  as  a  jurist 
in  the  calm  and  impartial  investigation  of  truth;  having 
no  conceivable  motive  to  reject  the  plain  teachings  of  his 
tory  and  law.  Indeed,  as  we  have  seen,  he  agreed  with 
Story  and  Webster  in  regard  to  the  principle  of  law,  and 
differed  from  them  only  in  regard  to  facts.  Hence,  if  they 
had  not  denied  that  the  Constitution  was  made  by  the 
States,  they  would  have  been  compelled,  like  Mr.  Eawle* 
to  admit  the  right  of  secession. 

"  The   Union  is  an  association  of  republics,"  says  Mr. 

Eawle Again,  "we  have  associated  as  republics 

But  the  mere  compact,  without  the  means  to  enforce  it, 
would  be  of  little  value."  f  Having  annonnced  the  truth, 
that  the  Constitution  is  a  compact  between  republics,  he 
drew  the  inference  from  this  which  is  admitted  to  follow 
by  Story  and  Webster.  That  is,  he  inferred  the  right  of 
secession ;  just  as  if  there  could  be  no  question  on  so  plain  a 
point  of  law.  "It  depends  on  the  State  itself,"  said  he, 
"to  retain  or  abolish  the  principle  of  representation,  BE 
CAUSE  IT  DEPENDS  ON  THE  STATE  ITSELF  WHETHER  IT  CON 
TINUES  A  MEMBER  OF  THE  UNION."  Again,  he  says,  "THE 
STATES  MAY  WITHDRAW  FROM  THE  UNION,  but  while  they 
continue,  they  must  retain  the  character  of  republics,"  as 
well  as  comply  with  every  stipulation  of  the  constitution 
al  compact "  The  secession  of  a  State  from  the  Union," 

he  continues,  "depends  on  the  will  of  the  people.  The 
Constitution  of  the  United  States  is  to  a  certain  extent, 
incorporated  with  the  Constitutions  of  the  several  States 

*  Buchanan's  Administration,  p.  88. 

f  Rawle  on  the  Constitution,  Chap,  zzxii. 


IS    DAVIS    A    TRAITOR?  191 

by  the  act  of  the  people." "Nothing  is  more  certain 

than  that  the  act  [secession]  should  be  deliberate,  clear,  and 
unequivocal.  The  perspicuity  and  solemnity  of  the  origi 
nal  obligation  require  correspondent  qualities  in  its  disso 
lution." 

Now  thife  is  the  language  of  a  man,  of  an  eminent 
jurist,  who  was  the  contemporary  and  friend  of  Wash 
ington.  He  lived  before  the  rise  of  those  new  ideas,  and 
dazzling  images  of  power,  which  afterward  obscured 
"the  perspicuity  and  solemnity"  of  the  act  by  which  each 
State  had  acceded  to  the  compact  of  the  Constitution. 
Was  not  this  man  of  "distinguished  abilities  and  unques 
tioned  patriotism,"  then,  right  both  in  regard  to  his  premise 
and  to  his  conclusion?  He  took,  as  we  have  seen,  pre 
cisely  the  same  view  of  the  Constitution  as  that  taken  by 
all  his  great  contemporaries,  the  fathers  of  the  Constitu 
tion  themselves;  and  he  only  inferred  from  this  view  the 
right  of  secession,  which,  according  to  Story  and  Web 
ster,  is  a  legitimate  inference?  But  even  if  he  was  not 
right,  if  Rawle,  and  Story,  and  Webster  were  all  in  error 
as  to  the  justness  of  this  inference;  still  were  it  not  the 
very  height  of  absurdity,  the  very  climax  of  intolerance, 
the  very  quintessence  of  malice  and  persecuting  bigotry 
to  pronounce  such  an  opinion  treason? 

If,  then,  any  poor  benighted  son  of  the  South  was 
really  guilty  of  treason  on  account  of  secession;  this 
must  have  been  either  because  he  understood  the  Consti 
tution  no  better  than  those  who  made  it,  or  because  he 
knew  the  law  of  compacts  no  better  than  the  most  cele 
brated  jurists  of  America?  On  which  horn  of  this  di 
lemma  shall  he  be  hanged?  Shall  he  be  tried  and  found 
guilty  of  treason,  for  not  understanding  the  Constitution 
better  than  Morris,  and  Madison,  and  Hamilton,  and 
Washington;  or  for  not  knowing  the  law  of  compacts 
better  than  Eawle,  and  Story,  and  Webster?  If  found 
guilty  on  either  ground,  it  is  to  be  hoped  that  his  counsel 


192  IS   DAVIS    A   TRAITOR? 

will  move  an  arrest  of  judgment,  that  such  distressing 
ignorance  was  his  misfortune,  not  his  fault. 

Massachusetts  and  the  Hartford  Convention. 

The  facts,  proofs,  and  authorities  going  to  establish  the 
right  of  secession  are,  indeed,  so  redundant,  so  overflow 
ing,  nay,  so  absolutely  overwhelming,  that  niany  of  them 
have  been  necessarily  omitted  in  the  foregoing  argument. 
One  of  them  is,  however,  quite  too  important  and  striking 
to  be  entirely  neglected.  Hence  it  shall  be  introduced  in 
the  present  place. 

The  Virginia  Eesolutions  of  '98  were  submitted,  as  the 
reader  is  doubtless  aware,  to  the  Legislatures  of  every 
State  in  the  Union.  These  Eesolutions  contained,  as  we 
have  repeatedly  seen,  the  very  doctrine  so  eloquently 
denounced  by  Mr.  Webster  in  1833;  the  doctrine,  namely, 
that  the  Constitution  is  a  compact  between  the  States  of 
the  Union.  This  doctrine  was,  in  fact,  made  the  ground 
work  of  that  celebrated  manifesto.  Now  it  is  a  remark 
able  fact,  that  not  one  of  the  Legislatures,  who  replied  to 
the  Eesolutions  of '98  called  this  great  fundamental  position 
in  question.  No  one  at  that  early  day,  so  near  the  ori 
gin  of  the  Constitution,  seems  to  have  dreamed  that  such 
a  doctrine  was  tainted  with  heresy,  much  less  with  trea 
son.  Not  a  single  Legislature  seems  to  have  imagined, 
for  one  moment,  that  the  United  States,  or  the  States 
United,  did  not  form  a  Confederacy,  or  that  its  Constitution 
was  not  a  compact,  in  the  answer  of  the  Legislature  of 
Massachusetts,  Mr.  Story's  and  Mr.  Webster's  own  State, 
by  far  the  most  able  and  elaborate  of  all  the  replies  to  the 
Eesolutions  in  question,  there  is  not  one  syllable  or  sign 
of  opposition  to  the  doctrine,  that  the  States  formed  a 
Confederacy,  or  that  their  Constitution  was  a  compact 
between  them.  On  the  contrary,  Massachusetts,  then  and 
there,  in  her  great  manifesto  in  opposition  to  that  of  Vir 
ginia,  expressly  recognized  the  truth  of  that  doctrine. 


IS    DAVIS    A    TRAITOR?  193 

That  is,  in  conformity  with  the  uniform  and  universal 
usage  of  the  day,  she  spoke  of  the  desire  of  Massachu 
setts  to  "CO-OPERATE  WITH  ITS  CONFEDERATE  STATES;"*  and 
also  of  "THAT  SOLEMN  COMPACT,  WHICH  is  DECLARED  TO  BE 

THE    SUPREME    LAW    OF    THE    LAND."  f      Massachusetts    WaS 

not,  then,  one  of  that  mighty  cloud  of  witnesses,  com 
posed  alike  of  "friends  and  foes,"  which  Mr.  Webster,  with 
his  great  dark  eye  "in  a  fine  frenzy  rolling,"  fancied  that 
he  saw  in  the  air,  all  uniting  in  the  solemn  declaration,  as 
with  the  voice  of  doom,  that  COMPACT  is  no  more,  that 
CONFEDERACY  has  fallen,  and  that  thenceforth  THE  SOV 
EREIGN  WILL  OF  THE  ONE  GRAND  NATION,  THE  PEOPLE  OF 

AMERICA,  SHALL  REIGN  FOREVER  AND  EVER!  On  the  con 
trary,  poor  simple-hearted  Massachusetts  of  1799  im 
agined,  that  a  compact,  that  even  a  "solemn  compact,"  not 
only  might  be,  but  actually  was,  "the  supreme  law  of  the 
land,"  and  that  it  was  under  or  by  virtue  of  that  solemn 
compact  that  she  had,  only  eleven -years  before,  "confed 
erated"  with  her  sister  States! 

Nor  is  this  all.  Massachusetts  continued,  for  some 
years  longer,  true  to  the  first  great  article  in  the  creed  of 
the  fathers.  Indeed  circumstances  greatly  favored  her 
fidelity,  and  deepened  the  fervor  of  her  faith.  The  acqui 
sition  of  Louisiana,  which  added  a  vast  empire  to  the 
Southern  end  of  the  Union,  produced  a  profound  dissatis 
faction  throughout  Massachusetts  and  the  other  New 
England  States;  causing  "the  glorious  Union"  to  wane, 
and  the  sovereignty  of  the  States  to  wax,  mightily  in 
their  eyes.  "At  an  early  period  after  the  formation  of 
the  Constitution,"  as  Mr.  Buchanan  truly  says,  "many 
influential  individuals  of  New  England  became  dissatisfied 
with  the  union  between  the  Northern  and  Southern 
States,  and  wished  to  dissolve  it."  "This  design,"  according 
to  Mr.  John  Quincy  Adams,  "had  been  formed  in  the  win 
ter  of  1803-4,  immediately  after  and  in  consequence  of 

*  Elliot1  a  Debates,  Vol.  4.  p.  563.  f  Ibid,  p.  660. 

10 


194  IS   DAVIS    A    TRAITOR? 

the  acquisition  of  Louisiana."*  The  embargo  and  non- 
intercourse  laws,  which  were  designed  to  bring  England 
to  terms  without  the  dire  necessity  of  war,  augmented  the 
already  great  dissatisfaction  of  New  England;  because 
they  affected  her  commercial  interests,  and  thereby 
touched  her  in  by  the  most  sensitive  portion  of  her 
frame.  She  cried  aloud  for  war!  She  cried,  down  with 
all  your  embargo  and  non-intercourse  laws,  and  up  with 
the  flag  of  armed  resistance!  Impatient  at  the  slow 
movements  of  the  South,  she  taunted  her  with  cowardice, 
and  courteously  as  well  as  elegantly  declared,,  that  the 
South  could  not  be  "kicked  into  a  war  with  England." 
But  she  was  mistaken;  she  did  not  fully  comprehend 
the  South;  the  South  is,  perhaps,  too  easily  "kicked 
into  a  war."  It  is  certain,  that  the  South  in  the  persons 
of  her  two  young,  ardent,  enthusiastic,  and  chivalrous  rep 
resentatives,  Henry  Clay,  of  Kentucky,  and  John  C.  Cal- 
houn,  of  South  Carolina,  responded  to  the  loud,  vehement 
war-cry  of  New  England.  Their  eloquence  shook  the 
nation.  The  spirit  of  armed  resistance  was  roused;  and 
the  war  with  Great  Britain  proclaimed.  But,  alas!  this 
did  not  help  the  commerce  of  New  England.  The  remedy 
proved  worse  than  the  evil.  Her  ravenous  pockets,  in 
stead  of  being  filled  with  gold  and  satisfied,  became  still 
more  and  more  alive  to  the  dreadful  state  of  things,  and, 
thereupon,  she  endeavored  to  "kick  the  South"  out  of  the 
war  with  Great  Britain.  In  this,  the  dark  hour  of  her 
agony  and  distress,  she  suddenly  discovered  that  war  is, 
at  best,  a  most  unholy  and  unchristian  thing;  not  to  be 
entered  on  lightly,  or  without  counting  the,  cost.  She  also 
discovered,  that,  after  all,  the  number  of  her  seaman,  im 
pressed  by  the  tyranny  of  Great  Britain,  had  been  greatly 
exaggerated  (by  whom?);  and  that  consequently  the 
cause  of  quarrel  was  far  too  small  to  justify  so  unholy  and 
so  unchristian,  that  is  to  say,  so  unprofitable  a  war. 
*  Buchanan's  Administration,  p.  86. 


IS   DAVIS   A   TRAITOR?  195 

In  the  dark  hour  of  her  distress,  the  glorious  rights  of 
the  States  came  out,  and  showered  down  their  radiance  on 
all  New  England,  like  the  stars  at  night.  The  sovereignty 
of  her  own  beloved  Massachusetts,  indeed,  then  totally 
eclipsed  the  full  moon  of  the  once  *' glorious  Union;"  just 
as  completely  as  if  Massachusetts  had  been  "the  whole 
earth."  I  speak  from  the  record;  from  that  secret,  silent 
record  of  the  Hartford  Convention,  in  which  all  the  pro 
found  dissatisfaction  of  New  England  with  the  Union  cul 
minated;  and  into  which  her  sons,  in  spite  of  all  their 
prying  curiosity,  have  no  desire  whatever  to  look.  Mr. 
Webster,  for  example,  in  his  great  debate  with  Mr.  Hayne, 
of  South  Carolina,  in  1830,  solemnly  declared  that  he  had 
never  read  the  proceedings  of  that  famous  Convention. 
No  wonder! 

"  Where  ignorance  is  bliss,  'tis  folly  to  be  wise." 

"Events  may  prove,"  says  the  Journal  of  the  Hartford 
Convention,  January  4th,  1815,  "that  the  causes  of  our 
calamities  are  deep  and  permanent.  They  may  be  .found 
to  proceed,  not  merely  from  blindness  of  prejudice,  pride 
of  opinion,  violence  of  part j| spirit,  or  the  confusion  of  the 
times;  but  they  may  be  traced  to  implacable  combinations  of 
individuals,  OR  OF  STATES,  to  monopolize  power  and  office,  and 
to  trample  without  remorse  upon  the  rights  and  interests  of  the 
commercial  sections  of  the  Union."*  Now,  if  we  only  sub 
stitute  the  term  agricultural  for  commercial  in  the  above 
passage;  how  admirably  will  it  express  the  complaint  of 
the  South,  which,  for  long  years  of  endurance,  was  treated 
with  such  imperial  scorn  and  implacable  contempt  by  the 
States  of  New  England! 

"Whenever  it  shall  appear,"  continues  the  Journal, 
"that  these  causes  are  radical  and  permanent,  a  separation 
by  equitable  arrangement,  will  be  preferable  to  AN  ALLIANCE  BY 

CONSTRAINT,  AMONG   NOMINAL   FRIENDS,  BUT  REAL  ENEMIES, 
*Page6.  '  i 


196  IS   DAVIS  A   TRAITOR? 

INFLAMED  BY  MUTUAL  HATRED  AND  JEALOUSIES,  AND  INVI 
TING,  BY  INTESTINE  DIVISIONS,  CONTEMPT  AND  AGGRESSIONS 

FROM  ABROAD."*  Precisely  thus,  and  not  otherwise,  rea 
soned  the  South  in  1861;  and  asked  for  "a  separation  by 
equitable  arrangement,"  instead  of  "  an  alliance  by  con 
trast"  with  "nominal  friends,  but  real  enemies,  inflamed 
by  mutual  hatred  and  jealousies."  But  the  great  boon 
was  contemptuously  refused ;  because  the  sentiments  of 
New  England  had  undergone  a  radical  and  total  revolu 
tion.  The  reason  is,  that  those  were  the  sentiments  of 
New  England  in  the  minority,  and  these  the  sentiments 
of  New  England  in  the  majority  Holy  indeed  was  her 
horror  of  "an  alliance  by  constraint,"  when  she  was  the 
party  in  danger  of  being  constrained;  but  no  sooner  had 
she  acquired  the  power  to  constrain,  than  such  an  alliance 
appeared  altogether  pure  and  just  in  her  unselfish  eyes! 

The  Journal  of  this  Convention  has  much  to  say  about 
"the  constitutional  compact;"  and  hence,  if  it  had  only 
been  read  by  Mr.  Webster,  he  must  have  been  familiar 
with  this  mode  of  expression,  which  so  seriously  offended 
him  in  the  resolutions  of  Mr.  Calhoun  in  1833,  and  called 
forth  his  fine  burst  of  eloquent  in  defence  of  the  rights  of 
that  "noun  substantive,"  the  CONSTITUTION.  He  must  have 
discovered  also,  that  in  the  opinion  of  Massachusetts  in 
1815,  the  rights  of  sovereign  States  are  at  least  as  important 
as  those  of  any  noun  substantive  in  the  language.  For,  in 
the  words  of  that  Convention,  the  power  of  conscription  is 
"not  delegated  to  Congress  by  the  Constitution,  and  the 
exercise  of  it  would  not  be  less  dangerous  to  their  liberties,  THAN 

HOSTILE  TO  THE  SOVEREIGNTY  OF    THE    STATES."  f 

"It  must  be  the  duty  of  the  State  to  watch  over  the  rights 
reserved,  as  of  the  United  States  to  exercise  the  powers 
which  were  delegated^ 

The  Hartford  Convention,  towering  in  the  strength  of 
its  State  rights  sentiments,  continues  thus:  "That  acts 

*  Psge  5.  f  Page  8.  ~  J  Page  7. 


IS   DAVIS   A   TRAITOR?  197 

of  Congress  in  violation  of  the  Constitution  are  absolute 
ly  void,  is  an  undeniable  position.  It  does  not,  however, 
consist  with  the  respect  from  a  CONFEDERATE  STATE 
towards  the  General  Government,  to  fly  to  open  resistance 
upon  every  infraction  of  the  Constitution.  The  mode  and 
the  energy  of  the  opposition  should  always  conform  to 
the  nature  of  the  violation,  the  intention  of  the  authors, 
the  extent  of  the  evil  inflicted,  'the  determination  mani 
fested  to  persist  in  it,  and  the  danger  of  delay.  But  in 
cases  of  deliberate,  dangerous,  and  palpable  infractions 
of  the  Constitution,  AFFECTING  THE  SOVEREIGNTY  OF  THE 
STATE,  and  liberties  of  the  people ;  it  is  not  only  the  right, 
but  the  duty,  of  such  State  to  interpose  its  authority  for  their 
protection,  in  the  manner  best  calculated  to  secure  that  end. 
When  emergencies  occur  which  are  either  beyond  the 
reach  of  judicial  tribunals,  or  too  pressing  to  admit  of 
delay  incident  to  their  forms,  STATES,  WHICH  HAVE  NO 

COMMON  UMPIRE,  MUST  BE  THEIR  OWN  JUDGES,  AND  EXE 
CUTE  THEIR  OWN  DECISIONS."*  Now,  *  if  possible,  this 
comes  more  directly  and  plainly  to  the  point,  than  the 
Resolutions  of  '98.  It  not  only  sets  forth  the  great  doc 
trine,  it  sometimes  employs  the  very  language  of  those 
Resolutions. 

Having  finished  its  work,  and  appointed  commissioners 
to  lay  the  complaints  of  New  England  before  the  Govern 
ment  of  the  United  States,  the  Convention  resolved,  that 
"if  these  should  fail,"  it  would  be  the  duty  of  the  New 
England  States  to  hold  another  Convention  at  Boston,  on 
the  3d  Thursday  of  June,  with  such  powers  and  instruc 
tions  as  so  momentous  a  crisis  may  require,  f  No  such 
Convention  ever  assembled  at  Boston,  or  elsewhere;  for, 
in  the  meantime,  the  great  trouble  had  come  to  an  end. 
How,  or  by  what  means?  Mr.  Webster,  though  he  con 
fesses  ignorance  as  to  the  proceedings  of  the  Hartford 
Convention,  is  nevertheless  perfectly  ready  with  an  an- 

*  Pp.  10-11.  fP.  21. 


198  IS    DAVIS    A   TRAITOR? 

swer  to  this  question.  In  his  senatorial  debate  with  Mr. 
Hayne,  in  1830,  he  tells  the  world,  that  Massachusetts 
gave  up  all  opposition  as  soon  as  the  Supreme  Court  of  the 
"United  States  decided  the  laws  of  which  she  complained 
to  be  constitutional;  thus  showing  her  loyalty  under  the 
most  severe  and  trying  circumstances !  This  was,  perhaps, 
a  thrust  at  South  Carolina;  who,  as  Mr.  Webster  sup 
posed,  stood  far  apart  from  Massachusetts  in  the  heresy, 
that,  in  great  and  trying  emergencies,  "the  States,  who 
have  no  common  umpire,  are  to  be  their  own  judges,  and 
to  execute  their  own  decisions."  How  little  he  knew  the 
history  of  his  own  State !  Hence,  he  could  fondly  imagine, 
that  Massachusetts  had  always  been  willing  and  ready  to 
bow  to  the  Supreme  Court  as  the  common  umpire  between 
the  States,  and  proudly  pointed  to  her  conduct  in  1815, 
bending  and  groaning  under  the  burden  of  the  laws,  and 
yet  loyally  submitting  to  the  high  tribunal  by  whom  it  was 
fastened  upon  her  shoulders !  The  truth  is,  as  we  have 
just  seen,  that  Massachusetts  had  resolved  to  take  that 
very  emergency  into  her  own  hands ;  to  be  her  own  judge, 
and  to  execute  her  own  decision.  She  cared  indeed  as  little 
for  the  Supreme  Court,  in  such  an  emergency,  as  she  did 
for  the  other  Courts  of  the  Union;  whose  decisions  had 
been  repeatedly  treated  with  contempt,  and  resisted  with 
impunity,  by  her  very  loyal  citizens  during  the  great 
trouble  of  the  war. 

Why,  then,  did  Massachusetts  submit  at  last?  Why 
did  so  great  a  change  come  over  the  spirit  of  her  dream? 
The  answer  is  a  very  simple  one.  It  is  told  in  the  printed 
proceedings  of  the  Hartford  Convention.  The  story  is 
certainly  not  so  well  adapted  to  the  purposes  of  poetry,  or 
of  oratory,  as  the  fine  fiction  invented  by  Mr.  Webster; 
but  it  has,  at  least,  the  homely  merit  of  truth.  Har 
rison  Gray  Otis,  T.  H.  Perkins,  and  W.  Sullivan,  the 
commissioners  appointed  by  the  Convention  to  lay  the 
grievances  of  New  England  before  the  Government  of  the 


IS    DAVIS    A    TRAITOR?  199 

United  States,  reported  that  they  had  declined  to  do  so, 
"because  they  found,  on  their  arrival  at  Washington,  that  peace 
had  been  concluded" *  That  was  the  secret  of  the  submis 
sion  of  Massachusetts.  The  war  with  Great  Britain  was 
at  an  end;  the  embargo  and  non -intercourse  would,  of 
course,  no  longer  vex  her  righteous  soul;  she  could  unfurl 
the  wings  of  her  commerce  to  every  breeze,  and  bring  in 
harvests  of  gold  from  every  quarter  of  the  globe.  That 
was  the  secret  of  her  great-hearted  loyalty  and  submission. 
She  no  longer  had  any  thing  to  submit  to ! 

Sidney  Smith  complains  of  "exegesis,"  that  it  spoils  so 
many  fine  sermons;  not  allowing  the  preacher  to  ramble 
in  his  rhetoric,  or  to  nourish  at  random,  without  regard 
to  the  real  sense  of  his  text.  The  same  complaint  may  be 
urged  against  the  simple  truth  of  history.  How  many 
splendid  orations,  and  grand  soaring  flights  of  rhetoric, 
will  it  not  spoil  for  the  people  of  New  England!  How 
many  self-flattering  and  glorious  illusions  will  it  not  dispel ! 

"That  their  object  was,"  said  Mr.  John  Quincy  Adams, 
"and  had  been  for  several  years,  a  dissolution  of  the 
Union,  and  the  establishment  of  a  separate  Confederation, 
he  knew  from  unequivocal  evidence,  although  not  prova 
ble  in  a  court  of  law;  and  that  in  case  of  a  civil  war,  tho 
aid  of  Great  Britain  to  effect  that  purpose  would  be 
assuredly  resorted  to,  as  it  would  be  indispensably  neces 
sary  to  their  design. "f 

This  design,  says  Mr.  Adams,  he  had  communicated  to 
Mr.  Jefferson,  in  1809.  Again,  while  President  of  the 
United  States,  Mr.  Adams  said:  "That  project,  I  repeat, 
had  gone  to  the  length  of  fixing  upon  a  military  leader 
for  its  execution ;  and  although  the  circumstances  of  the 
times  never  admitted  of  its  execution,  nor  even  of  its  full 
development,  I  had  no  doubt  in  1808  and  1809,  and  have 

*  Proceedings  of  Hartford  Convention,  p.  33. 
f  Letter  of  Dec.  30,  1828,  in  reply  to  Harrison  Gray  Otis  and 
others. 


200  IS   DAVIS   A   TRAITOR? 

no  doubt  at  this  time,  that  it  is  the  key  of  all  the  great 
movements  of  the  Federal  Party  in  New  England,  [and 
that  party  was  then  in  the  ascendency  in  New  England,] 
from  that  time  forward  till  its  final  catastrophe  in  the 
Hartford  Convention."* 

"It  is  but  fair  to  observe,"  says  Mr.  Buchanan,  "that 
these  statements  were  denied  by  the  parties  implicated, 
but  were  still  adhered  to  and  again  reaffirmed  by  Mr. 
Adams. "f  True,  it  is  but  fair  that  their  denial  should  be 
known,  and  estimated  at  its  true  value.  But  who  could 
expect  any  men  to  acknowledge  their  complicity  in  such 
a  design?  If,  in  the  dark  hour  of  their  country's  trial, 
engaged  in  a  war  with  the  greatest  nation  upon  earth, 
they  could  conceive  the  idea  of  deserting  her  standard,  and 
even  of  invoking  the  aid  and  the  arms  of  her  powerful 
enemy  to  make  their  desertion  good,  is  it  to  be  supposed 
that,  after  the  scheme  had  failed  or  blown  over,  they 
would  have  pleaded  guilty  to  such  a  design?  Nor  is  this 
all.  What  did  they  mean  by  appointing  another  Conven 
tion  to  be  held  at  Boston  ?  Did  they  mean  nothing  ?  Or 
if  they  had  any  honorable  design, — any  design  which  need 
not  shrink  from  the  light  of  day, — why  has  it  never  been 
avowed  by  them?  The  truth  is,  if  any  one  shall  carefully 
examine  the  proceedings  of  the  Hartford  Convention,  and 
the  previous  history  of  New  England  which  culminated  in 
that  Convention,  he  can  hardly  fail  to  perceive,  that  the 
positive  testimony  of  John  Quincy  Adams,  is  most  power 
fully  corroborated  by  circumstances.  The  conclusion  of 
Mr.  Buchanan  appears  perfectly  true;  "that  this  body 
[the  Hartford  Convention]  manifested  their  purpose  to 
dissolve  the  Union,  should  Congress  refuse  to  redress  the 
grievances  of  which  they  complained." 

Four  years  before  the  date  of  the  Hartford  Convention, 
Mr.  Josiah  Quincy,  an  influential  member  of  Congress 

f  Letter  of  Dec.  30,  1828.  in  reply  to  H.  Gray  Otis  and  other. 
*  Buchanan's  Administration,  p.  87. 


IS   DAVIS    A   TRAITOR?  201 

from  Massachusetts,  publicly  declared  the  right  of  seces 
sion.  The  extract  from  his  speech  on  the  14th  January, 
1811,  is  hackneyed;  but  it  is,  nevertheless,  significant  of 
what  was  then  passing  in  the  mind  of  Massachusetts.  It 
is  also  exceedingly  significant;  because  it  was  uttered  in 
opposition  to  the  admission  of  Louisiana  into  the  Union 
as  a  State.  "If  this  bill  passes,"  said  he,  "it  is  my  delib 
erate  opinion  that  it  is  virtually  a  dissolution  of  the  Union ; 
that  it  will  free  the  States  from  their  moral  obligation 
and,  as  it  will  be  the  right  of  all,  so  it  will  be  the  du^y  of 
some,  definitely  to  prepare  for  separation,  amicably  if  they 
can,  violently  if  they  must."  Nay,  upon  the  purchase  of 
Louisiana  in  1803,  the  Legislature  of  Massachusetts  passed 
the  following  resolution:  "Resolved,  That  the  annexation 
of  Louisiana  to  the  Union,  transcends  the  Constitutional 
power  of  the  Government  of  the  United  States.  It  formed 
a  new  Confederacy  to  which  the  States  united  by  the  former 
compact,  are  not  bound  to  adhere."  Thus,  as  we  have  seen, 
Massachusetts  from  the  foundation  of  the  Federal  Govern 
ment  down  to  1815,  held  the  Constitution  to  be  a  compact 
between  the  States,  and  the  Union  to  be  a  Confederacy. 
In  her  ordinance  of  ratification  in  1788;  in  her  reply  to  the 
Eesolutions  of  '98;  in  her  own  resolution  of  1803-4;  she 
most  distinctly  announced  this  doctrine.  Hence,  it  seems 
impossible  to  doubt  the  statement  of  John  Quincy  Adams,* 
that  the  Hartford  Convention  deduced  the  right  of  seces 
sion  from  the  fact,  that  the  Constitution  was  a  compact 
between  the  States  of  the  Confederacy.  This  was  a  clearly 
legal  inference.  Eawle,  Story,  and  Webster  all  admit  it 
to  be  such.  Thus  the  fathers,  one  and  all,  laid  down  the 
great  premise  or  postulate  of  the  doctrine  of  secession  at 
the  very  foundation  of  the  Union ;  and  the  New  England 
States,  in  1815,  deliberately  drew  the  inference,  and 
asserted  the  right  of  secession.  Yet  these  States,  in  1861-, 
took  the  lead  of  all  others  in  the  fierceness  and  the  bitter- 

*  Letter  of  Dec.  30,  1828,  to  H.  Gray  Otis,  &c. 
10* 


202  IS    DAVIS    A    TRAITOR? 

ness  of  their  denunciation  of  secession  as  treason  and 
rebellion!  The  first  to  assert  for  themselves,  and  yet  the 
first  to  persecute  in  others,  this  great  right! 

It  is  thus  that  Josiah  Quincy,  the  Webster  of  1815,  as 
serted  the  fundamental  principle  or  postulate  of  secession  : 
"Touching  the  general  nature  of  that  instrument  called 
the  Constitution  of  the  United  States,  there  is  no  obscu 
rity;  it  has  no  fabled  descent,  like  the  palladium  of  ancient 
Troy,  from  the  heavens.  Its  origin  is  not  confused  by 
the  mists  of  time,  or  hidden  by  the  darkness  of  past,  un 
explained  ages;  it  is  the  fabric  of  our  day.  Some  now  liv 
ing  had  a  share  in  its  construction ;  all  of  us  stood  by,  and 
saw  the  rising  edifice.  There  can  be  no  doubt  about  its  na 
ture.  It  is  a  political  compact."  Is  this  the  same  Josiah 
Quincy,  or  was  it  his  son,  who,  in  1861,  made  himself  so 
conspicuous  by  denouncing  secession  as  treason?  It  is 
certainly  the  same  Josiah  Quincy,  who,  in  1811,  was 
called  to  order  in  Congress  for  asserting  the  right  of  se 
cession,  and  voted  to  be  in  order.  How  rapidly  the  New 
England  world  turns  upon  its  political  axis!  In  1815,  as 
secession  was  the  right  of  all,  so  it  was  the  duty  of  some, 
of  the  States;  and,  in  1861,  it  was  treason  and  rebellion! 

Did  the  South  condemn  Secession  in  1815  f 

The  South,  it  has  been  repeatedly  asserted,  condemned 
the  secession  of  1815  as  treason,  and  is,  therefore,  estopped 
from  complaining  of  the  same  sentiment  in  1861.  "This," 
it  is  urged,  "  may  be  said  to  be  res  adjudicata.  All  parties 
are  committed  against  the  right  of  secession." 

Now,  even  if  the  facts  were  as  alleged,  still  this  would 
be  a  one-sided  logic.  For  if  the  South,  in  1815,  con 
demned  secession,  it  was  the  secession  which  New  Eng 
land  had  approved;  and  if  the  North,  in  1861,  denounced 
secession,  it  was  precisely  the  right  which  the  South  had 
asserted.  Hence,  it  is  just  as  true,  that  all  parties  were 
committed  /or,  as  that  all  parties  were  committed  against, 
the  right  of  secession, 


IS    DAVIS    A    TRAITOR?  203 

If,  as  is  supposed,  the  minority  was,  in  both  instances, 
in  favor  of  the  right  of  secession,  and  the  majority  op 
posed  to  it;  this  would  have  been  nothing  very  strange  or 
wonderful.  It  would  only  have  illustrated  the  saying  of 
Aristotle,  which  all  history  confirms,  that*  "the  weak 
always  desire  what  is  equal  and  just;  but  the  powerful 
pay  no  regard  to  it." 

But  the  facts  have  not  been  accurately  stated.  It  is 
true,  that  the  South,  as  well  as  other  portions  of  the 
Union,  vehemently  condemned  the  Hartford  Convention. 
No  Convention,  or  assembly,  was  ever  more  odious  to  the 
great  body  of  the  people  of  the  United  States.  But  its 
proceedings  were  secret;  and,  till  the  appearance  of  Mr. 
Adams'  letter  of  Dec.  30th,  1828,  its  precise  object  or  de 
sign  was  not  generally  known.  It  may  be  doubted,  indeed, 
if  it  was  ever  condemned  by  any  portion  of  the  South,  on 
the  simple  ground,  that  it  claimed  for  the  New  England 
States  merely  the  right  to  secede  from  the  Union,  and  to 
be  let  alone.  It  was,  however,  known  to  the  South,  that 
the  New  England  States  had  insisted  on  a  war  with  Great 
Britain  in  order  to  defend  and  secure  the  rights  of  their 
seamen.  It  was  also  known,  that  while  the  South  wa's 
engaged  in  this  war,  the  New  England  States  not  only 
failed  to  do  their  duty,  but  denounced  the  war  they  had 
instigated,  and  the  government  by  which  it  was  carried 
on.  It  is  true  that,  by  these  proceedings,  the  ^rath  of 
the  South  was  awakened,  and  that  she  denounced  them 
as  treason;  because  they  gave  "aid  and  comfort"  to  the 
enemy.  From  all  that  had  preceded,  how  could  the  South 
know,  indeed,  but  that  the  Hartford  Convention  had 
formed  the  dark  design  of  appealing  to  arms  against  the 
Government  of  the  United  States,  and  of  joining  Great 
Britain  in  the  war  against  the  people  of  this  country  ? 

Even  if  the  South  had  known,  that  New  England  mere 
ly  designed,  in  1815,  to  secede  from  the  Union ;  still  her 
indignation  would  not  have  been  without  just  cause.  For, 


204  IS   DAVIS   A   TRAITOR? 

having  got  the  South  into  a  war  with  Great  Britain,  was 
that  the  time  for  her  to  desert  the  standard  of  her  coun 
try,  and  leave  the  other  States  exposed  to  the  full  brunt 
of  its  fury?  The  clearest  right  may,  indeed,  be  exercised 
in  such  a  manner,  and  under  such  circumstances,  as  to 
render  it  odious.  The  right  of  secession  has,  no  doubt, 
been  made  to  appear  treasonable,  by  its  association  with 
the  Hartford  Convention  of  1815. 

Far  otherwise  was  the  conduct  of  the  South.  She  held 
no  secret  Conventions.  All  her  proceedings  were  as  open 
as  the  day.  The  United  States  were  at  peace  with  all  the 
world.  It  was  under  these  circumstances,  that  the  States 
of  the  South,  each  in  its  own  Convention  assembled,  with 
drew  from  the  Union,  and  asked  to  be  let  alone.  But  the 
South  was  not  permitted  to  enjoy  the  government  of  her 
choice.  On  the  contrary,  she  was  subjugated,  impover 
ished,  and  ruined,  with  the  avowed  design  to  bring  her 
back  into  the  Union ;  and  now  that  she  is  knocking  at  the 
door  of  the  Union,  she  is  not  allowed  to  enter.  What, 
then,  is  left  to  her  sons  and  daughters  but  to  weep  over 
the  inconsistency  and  wickedness  of  mankind;  and,  if  pos 
sible,  to  pray  for  their  enemies  ? 

Thomas  Jefferson  on  the  Eight  of  Secession. 

Though  Mr.  Jefferson  was  not  one  of  the  architects  of 
the  Constitution ;  yet  has  more  stress  been  laid  on  his 
supposed  opposition  to  the  right  of  secession,  than  upon 
that  of  any  other  statesman  of  America;  especially  by 
foreign  writers.  We  are  gravely  told,  with  the  usual 
information  of  such  writers,  that  "Mr.  Jefferson  was,  in 
after  life,  the  foremost  champion  of  State's  rights."  *  We 
are  also  informed,  that  "he  would  certainly  have  turned 
away  with  abhorrence  from  the  consequences  to  which 
these  [rights]  have  since  been  driven."  j-  This  last  senti 
ment  is,  perhaps,  conformed  to  the  general  opinion  at  the 
North  on  the  same  subject.  But  is  it  true? 

*  History  of  United  States,  by  J.  M.  Ludlow.  f  Ibid. 


IS   DAVIS   A   TRAITOR?  205 

• 

It  is  certain,  in  the  first  place,  that  Mr.  Jefferson  him 
self  deduced  the  right  of  nullification  from  the  doctrine  of 
State-rights;  not  "in  after  life,"  but  in  1799,  before  he  was 
President  of  the  United  States.  Mr.  Everett,  I  am  aware, 
insinuates  that  Mr.  Jefferson  never  favored  the  doctrine 
of  nullification.  "Such,  in  brief,"  says  he,  "was  the. main 
purport  of  the  Virginia  and  Kentucky  resolutions."  The 
sort  of  interposition  indeed  was  left  in  studied  obscurity. 
Not  a  word  was  dropped  of  secession  from  the  Union. 
Mr.  Nicholas'  resolution  in  1799  hinted  at  "nullification" 
as  the  appropriate  remedy  for  an  unconstitutional  law, 
but  what  was  meant  by  the  ill-sounding  word  was  not 
explained."*  Now  this  statement  is  of  a  piece  with  the 
main  substance  of  that  grand  swelling  oration  of  the  great 
Massachusetts  declaimer.  It  is  utterly  devoid  of  truth. 

In  the  first  place,  Mr.  Jefferson  himself  in  his  correspon 
dence,  replied  to  the  enquiry  of  the  son  of  Mr.  Nicholas, 
that  his  father  was  not  the  author  of  the  resolutions  in 
question.  Mr.  Jefferson  says:  "I  drew  and  delivered 
them  to  him."f 

Nor  is  this  all.  "Two  copies  of  these  resolutions,"  says 
the  editor  of  Mr.  Jefferson's  works,  "are  preserved  among 
the  manuscripts  of  the  author,  both  in  his  own  hand 
writing.  One  is  a  rough  draft,  and  the  other  very  neatly 
and  carefully  prepared.  The  probability  is,  that  they  are 
the  original  of  the  "Kentucky  Resolutions  on  the  same 
subject."  J  Let  us  see,  then,  the  very  language  of  these 
Resolutions,  and  the  manner  in  which  they  "  hinted  at  nul 
lification." 

The  first  resolution  is  in  these  words :  "  Resolved,  That 
the  several  States  composing  the  United  States  of  Amer 
ica,  are  not  united  on  the  principle  of  unlimited  sub 
mission  of  their  general  government;  but  that,  by  a 
compact  under  the  style  and  title  of  the  Constitution 

*  Rebellion  Record,  Vol.  1,  p.  20. 
•  *  Jefferson's  Works,  Vol.  vii.  p.  229.  J  Ibid  Vol.  ix,  p.  464. 


206  IS   DAVIS    A   TRAITOR? 

of  the  United  States,  and  of  amendments  thereto,  they 
constitute  a  general  government  for  special  purposes; 
and  that  whensoever  the  general  government  assumes 
undelegated  powers  its  acts  are  unauthoritative,  void,  and 
of  no  force,  that  to  this  compact  each  State  acceded  as  a  State, 
and  is  an  integral  party,  its  co-States  forming,  as  to  itself,  the 
other  party ;  that  the  government  created  by  this  compact  was 
not  made  the  exclusive  or  final  judge  of  the  extent  of  the  powers 
delegated  to  itself;  since  that  would  have  made  its  discretion,  not 
the- Constitution,  the  measure  of  its  powers;  BUT  THAT,  AS  IN 

ALL  CASES  OF  COMPACT  AMONG  POWERS  HAVING  NO  COMMON 
JUDGE,  EACH  PARTY  HAS  AN  EQUAL  RIGHT  TO  JUDGE  FOR 
ITSELF,  AS  WELL  OF  INFRACTIONS  AS  OF  THE  MODE  AND  MEAS 
URE  OF  REDRESS."*  So  much  for  the  postulate. 

The  conclusion  is  in  these  words :  Resolved,  That 

where  powers  are  assumed  which  have  not  been  delegated, 
a  nullification  of  the  act  is  the  rightful  remedy;  that 
every  State  has  a  natural  right  in  cases  not  within  the 
compact,  [casus  non  fa?deris,~]  to  nullify  of  their  own 
authority  all  assumptions  of  power  by  others  within  their 
limits;  that  without  this  right,  they  would  be  under  the 
dominion,  absolute  and  unlimited,  of  whosoever  might 
exercise  this  right  of  judgment  for  them;  that  neverthe 
less,  this  .commonwealth,  from  motives  of  regard  and 
respect  for  its  co-States,  has  wished  to  communicate  with 
them  on  the  subject;  that  with  them  alone  it  is  proper  to 
communicate,  they  alone  being  the  parties  to  judge  in  the 
last  resort  of  the  powers  exercised  under  it,  CONGRESS  BEING 

NOT  A  PARTY,  BUT  MERELY  THE  CREATURE  OF  THE  COMPACT, 
AND  SUBJECT  AS  TO  ITS  ASSUMPTIONS  OF  POWER  TO  THE  FINAL 
JUDGMENT  OF  THOSE  BY  WHOM,  AND  FOR  WHOSE  USE  ITSELF 
AND  ITS  POWERS  WERE  ALL  CREATED  AND  MODIFIED,"  &C. 

Such  is  the  language  of  Thomas  Jefferson!  Is  it  merely  a 
modest  "hint  at  nullification?"  . 

Some  alterations  were  made  in  the  resolutions,  as  penned 

*  Jefferson's  Works,  Vol.  ix.  p.  464-5. 


IS    DAVIS    A    TRAITOR?  207 

by  Mr.  Jefferson,  before  they  were  passed  by  the  Legisla 
ture  of  Kentucky.  But  the  first  resolution  above  given 
was  not  altered  at  all ;  it  was  passed  precisely  as  it  came 
from  the  pen  of  Mr.  Jefferson,  with  only  one  dissentient  vote! 
In  the  resolutions  as  passed  by  the  State  of  Kentucky,  we 
find  these  words:  "That  the  principle  and  construction 
contended  for  by  sundry  of  the  State  Legislatures,  that  the 
General  Government  is  the  .exclusive  judge  of  the  extent 
of  the  powers  delegated  to  it,  stop  nothing  short  of  despot 
ism — since  the  discretion  of  those  who  administer  the  gov 
ernment,  and  not  the  Constitution,  would  be  the  measure 
of  their  powers :  That  the  several  States  who  formed  that 
instrument  being  sovereign  and  independent,  have  the  unques 
tionable  right  to  judge  of  the  infraction;  and,  THAT  A  NULLI 
FICATION  BY  THOSE  SOVEREIGNTIES,  OF  ALL  UNAUTHORIZED 
ACTS  DONE  UNDER  COLOR  OF  THAT  INSTRUMENT  IS  THE  RIGHT 
FUL  REMEDY."* 

Such  is  the  language,  which  Mr.  Everett  so  very  modestly 
calls  a  "hint  at  nullification  "  ! 

He  must  be  a  dull  logician,  indeed,  or  a  partial  one,  who 
does  not  see,  that  both  nullification  and  secession  flow 
from  the  great  fundamental  doctrine  of  the  Virginia  and 
the  Kentucky  Resolutions.  If,  according  to  that  doc 
trine,  stated  in  the  very  words  of  Massachusetts,  "the 
States,  who  have  no  common  umpire,  are  to  be  their  own 
judges,  and  to  execute  their  own  decisions;"  then  most 
assuredly  they  may  pronounce  in  favor  of  either  nullifica 
tion  or  secession.  Any  State  may,  it  is  true,  bring  re 
proach  on  this  right  of  sovereignty,  by  the  manner  in 
which  it  is  exercised.  I  have,  indeed,  always  doubted 
whether  nullification  was  a  wise,  or  judicious,  exercise  of 
the  right  of  State  sovereignty.  It  is  certain,  that  Mr. 
Webster,  as  well  as  many  others,  has  pointed  out  so  many 
inconveniences,  not  to  say  absurdities,  connected  with  the 
act  of  nullification;  that  the  right  has  usually  been  rejec- 

*  Elliot's  Debates,  Vol.  iv.,  p.  571. 


208  IS    DAVIS    A    TRAITOR? 

ted  with  contempt.  But  the  exercise  of  a  right  is  one 
thing;  and  the  existence  of  that  right  is  another.  A  man 
may,  in  his  own  affairs,  judge  unwisely;  but  does  that 
prove  that  he  had  no  right  to  judge  for  himself?  In  like 
manner,  it  does  not  follow,  that  a  sovereign  State  has  no 
right  to  be  her  own  judge;  because  she  may  judge  un 
wisely.  It  is,  then,  false  reasoning  to  conclude  that  a 
State  has  no  right  to  nullify,  because  the  act  of  nullifica 
tion  is  full  of  inconveniences,  or  even  absurdities.  Yet 
this  kind  of  sophistry  is  precisely  the  amount  of  all  the 
logic,  which  has  been  urged  against  nullification.  If  a 
man,  who  has  the  right  to  judge  for  himself  in  his  own 
business,  makes  an  unwise  decision ;  shall  the  right,  there 
fore,  be  taken  from  him,  and  given  to  another?  Shall  his 
decision  be  declared  null  and  void;  and  the  decision  of 
some  other  person  substituted  in  its  place?  Nothing  could 
be  more  unjust  and  despotic.  Nor  will  any  sovereign  State 
submit  to  be  treated  in  a  similar  manner  by  any  unauth 
orized  power  on  earth.  The  act  of  nullification  has,  no 
doubt,  brought  reproach  on  the  doctrine  of  State-rights, 
and  especially  on  the  right  of  secession ;  but  then  this  has 
been  just  because  men  have  failed  to  think  accurately  and 
profoundly  on  the  subject.  They  have  confounded  the 
propriety,  or  judiciousness  of  an  act,  with  the  right  of 
the  party  to  do  the  act,  than  which  a  worse  solicism  could 
hardly  be  perpetrated. 

Nullification  is,  however,  but  indirectly  connected  with 
secession.  This  right  flows,  as  we  have  seen,  directly 
from  the  doctrine  of  Mr.  Jefferson,  "that  as  in  all  other 
cases  of  compact,  among  parties  having  no  common  judge, 
each  party  has  an  equal  right  to  judge  for  itself,  as  well 
of  infractions  as  of  the  mode  and  measure  of  redress." 
To  say  that  a  State  has  the  right  to  judge  of  infractions 
of  the  compact  of  the  Constitution  by  the  Federal  Gov 
ernment,  and  also  of  the  mode  and  measure  of  redress; 
and,  at  the  same  time,  that  it  has  no  right  to  decide  upon 


18   DAVIS    A    TRAITOR?  209 

secession  as  the  proper  remedy;  is,  it  seems  to  me,  simply 
a  contradiction  in  terms.  Now  the  question  is,  was  Mr. 
Jefferson  guilty  of  this  act  of  glaring  inconsistency,  or 
self-contradiction  ? 

He  "would  have  turned  away  with  abhorrence,"  it  is 
said,  "from  the  consequences"  which  have  been  deduced 
from  the  doctrine  of  State  rights.  In  this  bold  assertion, 
the  writer  had  special  reference  to  the  right  of  secession; 
which  his  history  of  the  United  States,  as  it  is  called,  was 
written  to  demolish.  Hundreds  have,  indeed,  attempted 
to  throw  the  great  weight  of  Mr.  Jefferson's  authority  in 
the  scale  against  the  right  of  secession,  by  means  of  the 
following  extract  from  his  works:  "If  to  rid  ourselves  of 
the  present  rule  of  Massachusetts  and  Connecticut,  we 
break  the  Union,  will  the  evil  stop  there  ?  Suppose  the 
New  England  States  alone  cut  off,  will  our  nature  be 
changed  ?  Are  we  not  men  still  to  the  South  of  that,  and 
with  all  the  passions  of  men !  Immediately,  we  shall  see 
a  Pennsylvania  and  a  Virginia  party  arise  in  the  residuary 
confederacy.  What  a  game  too  will  the  one  party  have 
in  their  hands,  by  eternally  threatening  the  other  that 
unless  they  do  so  and  so,  they  will  join  their  Northern 
neighbors.  If  wo  reduce  our  Union  to  Virginia  and  North 
Carolina,  immediately  the  conflict  will  be  established  be 
tween  the  representatives  of  these  two  States,  and  they 
will  end  .by  breaking  into  their  separate  units." 

Now  this  partial  extract,  which  has  gone  the  rounds  of 
the  civilized  world,  gives  an  utterly  false  view  of  Mr.  Jef 
ferson's  opinion.  The  context  to  the  above  passage, 
which  is  sometimes  permitted  to  accompany  it,  shows 
that  Mr.  Jefferson  really  believed  in  the  right  of  secession, 
and  only  argued  against  the  intemperate  and  too  hasty 
exercise  of  that  right.  "If,"  says  he,  in  the  sentence  im 
mediately  preceding  the  above  extract,  "on  the  tempora 
ry  superiority  of  one  party,  the  other  is  to  resort  to  a 
scission  of  the  Union,  no  federal  government  can  exist." 


210  IS    DAVIS   A    TRAITOR? 

How  perfectly  true!  If,  for  so  trifling  a  cause,  any 
union  of  States  should  be  dissolved,  it  would  soon  be  re 
solved  into  its  original  units.  The  union  would  not  long 
exist,  and  it  would  not  deserve  to  exist,  if  its  members 
were  such  fools  as  to  resort  to  the  right  of  secession  "on 
the  temporary  success"  of  every  party  therein.  But  to 
argue,  as  Mr.  Jefferson  does,  against  the  too  hasty  and 
intemperate  exercise  of  the  right,  is  to  acknowledge  the 
existence  of  the  right  itself. 

In  the  Declaration  of  Independence,  Mr.  Jefferson  said, 
"that  long  established  governments  should  not  be  changed 
for  light  and  transient  causes"  Nor,  however  clear  the 
constitutional  right,  would  he  have  dissolved  the  Union 
for  such  causes.  But  does  he  say,  that  he  would  not  ad 
vocate  a  scission  of  the  Union  for  any  cause  whatever? 
That  in  no  event  whatever,  he  would  resort  to  the  right 
of  secession  ?  There  is  no  such  doctrine  in  his  writings ; 
no  such  glaring  self-contradiction  in  any  portion  of  his 
works. 

On  the  contrary,  in  consultation  as  to  what  the  Ken 
tucky  Eesolutions  of  '98  and  '99  should  contain,  he  wished 
the  following  sentiments  to  be  incorporated  therein:  "Ex 
pressing  in  affectionate  and  conciliatory  language  our  warm 
attachment  to  the  Union  with  our  sister  States,  and  to 
the  instrument  and  principles  by  which  we  are  united; 

THAT  WE  ARE  WILLING  TO  SACRIFICE  TO  THIS  EVERY  THING 
BUT  THE  RIGHTS  OF  SELF-GOVERNMENT  IN  THOSE  IMPORTANT 
POINTS  WHICH  WE  HAVE  NEVER  YIELDED,  AND  IN  WHICH 
ALONE  WE  SEE  LIBERTY,  SAFETY  AND  HAPPINESS."*  Is  it 

not  perfectly  obvious,  from  this  passage,  that  Mr. 
Jefferson  had  not  been  so  dazzled  by  the  glories  of  the 
new  Union,  as  to  forget  the  immortal  principles  of  the 
Declaration  of  Independence? 

Devoted  to  the  Union,  but  still  adhering  to  the  great 
principles  of  1776,  he  immediately  adds,  that  we  are  "not 

*  Jefferson's  Works,  Vol.  iv,  p.  305-6. 


IS    DAVIS    A   TRAITOR?  211 

at  all  disposed  to  make  every  measure  of  error  or  of 
wrong,  a  cause  of  scission."  Could  language  more  clear 
ly,  or  more  necessarily  imply,  that  there  are  measures  of 
error,  or  of  wrong,  which  he  would  make  a  ground  of 
scission,  or  secession  from  the  Union?  Or  could  any 
doctrine  be  more  clearly  asserted,  than  is  the  opinion  of 
Mr.  Jefferson,  that  the  States,  and  the  States  alone,  are  to 
be  the  judges  whether  the  measure  of  error,  or  of  wrong, 
which  justifies  her  secession,  has  been  filled  or  otherwise? 

The  Political  Creed  of  the  State-Rights  Party. 

The  Virginia  Eesolutions  of  '98  and  the  Kentucky  Ees- 
olutions  of  '98  and  '99,  the  former  from  the  pen  of  "the 
father  of  the  Constitution,"  and  the  latter  from  the  pen 
of  the  author  of  the  Declaration  of  Independence;  consti 
tuted,  for  at  least  forty  years,"  the  political  creed  of  the 
great  State-Eights  party.  They  were,  as  every  one 
knows,  the  manifestoes  on  which  Thomas  Jefferson  went 
before  the  people,  in  1800,  as  candidate  for  the  Presidency 
of  the  United  States?  They  were  also  inscribed  on  the 
banners  of  the  party  by  which  Madison,  and  Monroe,  and 
Jackson,  and  other  candidates,  were  supported  for  the 
game  high  office.  Were  they,  then,  at  that  time,  deemed 
treasonable  by  the  people,  or  by  their  leaders?  Let  us 
glance  at  the  record  and  see. 

In  1800,  Mr.  Jefferson  beat  his  opponent,  John  Adams, 
then  President  of  the  United  States,  by  a  majority  of 
eight  votes  in  the  electoral  college,  or  by  a  vote  of  73  to  65. 

In  1804,  Mr.  Jefferson,  the  champion  of  State-Eights, 
beat  his  opponent  by  the  overwhelming  majority  of  162 
votes  to  14.  In  the  Northern  States  alone,  Mr.  Jefferson 
received  85  votes,  and  his  opponent  only  9. 
.  In  1808,  Mr.  Madison  beat  his  opponent  by  a  vote  of 
122  to  47;  and,  in  spite  of  the  dissatisfaction  of  the  New 
England  States,  he  received  from  the  whole  North  a  ma 
jority  of  50  to  39  votes, 


212  IS   DAVIS   A  TRAITOR? 

In  1812,  lie  defeated  DeWitt  Clinton,  a  distinguished 
citizen,  and  formerly  Governor  of  New  York,  by  a  major 
ity  of  128  to  89;  receiving  in  the  Northern  States  only 
40  votes-to  his  rival's  80. 

In  1816,  James  Monroe  of  Virginia,  received  183  votes, 
and  his  opponent  only  34;  and  more  than  one-half  of 
these  183  votes  were  given  by  Northern  States. 

In  1820,  Mr.  Monroe  was  elected  over  John  Quincy 
Adams,  of  Massachusetts,  by  the  majority  of  231  votes  to 
13.  Two  other  candidates  were  in  the  field  at  the  same 
time,  Crawford  and  Jackson;  both  of  whom  together 
received  only  11  votes. 

This  vote,  however,  can  hardly  be  regarded  as  a  test  of 
the  popularity  of  the  doctrine  of  State-Eights;  since  this 
was,  in  1820,  professed  by  all  the  candidates  for  the  Presi 
dency.  Yet  this  fact  shows,  that  the  opposite  party  had 
been  so  often  and  so  completely  defeated,  that  it  refused 
to  nominate  a  candidate.  But  James  Monroe,  the  succes 
sor  of  Jefferson  and  Madison,  and  well  known  as  an  ar 
dent  advocate  of  the  doctrine  of  State  sovereignty,  swept 
the  whole  country,  and  carried  every  thing  before  him 
like  a  tornado.  Henceforth  all  aspirants  for  the  Presiden 
cy  bowed  down  to  that  great  symbol  of  political  truth 
and  power,  the  Virginia  Resolutions  of  '98.  Even  Mr. 
Webster  approached  them  with  evident  signs  of  awe,  and 
never  ventured  to  speak  of  them  otherwise  than  in  terms 
of  marked  respect,  if  not  of  veneration.  No  living  soiil 
dared  to  breath  the  suspicion  that  any  one  of  their  doc 
trines  was  treasonable. 

How,  then,  did  it  happen,  that  those  doctrines  were 
afterward  arraigned  by  Story  and  Webster  as  at  war  with 
the  Constitution  of  the  United  States?  How  did  it  hap 
pen,  that,  without  the  most  distant  allusion  to  the  Vir 
ginia  Resolutions,  under  which  so  many  battles  had  been ' 
fought  and  so  many  victories  won,  the  great  orator  of 
New  England  had  the  audacity  to  declare,  that  all  the 


IS   DAVIS   A   TRAITOR?  213 

fathers  of  the  Constitution,  that  all  the  publications  of 
friends  and  foes,  denied  the  Constitution  to  be  a  compact 
between  sovereign  States?  The  foregoing  brief  sketch 
of  the  progress  of  opinion  in  regard  to  the  nature  of  the 
Constitution  would  be  incomplete  without  an  answer  to 
this  question;  without  some  notice  of  the  causes  by  which 
so  marvellous  a  revolution  was  produced. 

The  Decline  of  the  Doctrine  of  the  Sovereignty  of  the  States, 
and  its  Causes. 

Mr.  Dane  says:  "That  for  forty  years  one  great  party 
has  received  the  Constitution,  as  a  federative  compact 
among  the  States,  and  the  other  party,  not  as  such  a  com 
pact,  but  in  the  main  national  and  popular."*  Now,  as 
we  have  seen  in  this  chapter,  the  above  statement  is  not 
true.  The  federal  party  itself,  writh  Hamilton  at  its  head, 
admitted  the  Constitution  to  be  a  compact  between  the 
States.  The  State  of  Massachusetts,  the  great  leading 
State  of  that  party,  always  held  the  Constitution  to  be 
such  a  compact  previous  to  the  year  1830.  She  held  this 
doctrine,  as  we  just  seen,  in  1788,  in  1799,  in  1803;  and 
she  continued  to  hold  it  until,  in  1815,  it  culminated  in  the 
avowed  right  of  secession.  There  is,  then,  no  truth  in  the 
statement,  that  for  forty  years  one  great  party  denied  the 
Constitution  to  be  a  federative  compact  among  the  States. 
One  great  party,  it  is  true,  showed  a  strong  disposition  to 
deny  the  sovereignty  of  the  States  in  the  Union,  and  to 
assert  the  sovereignty  of  the  Federal  Government.  But 
the  doctrine  imputed  to  it  was  not  one  of  its  heresies. 

Neither  Mr.  Dane,  nor  Judge  Story  who  quotes  his 
words,  is  pleased  to  inform  the  reader.that  "the  great 
party,"  which  is  asserted  to  have  sanctioned  their  own 
heresy,  was  swept  from  existence  by  the  other  great, 
party.  It  sank  so  low,  in  fact,  after  the  war  of  1812,  and 
became  so  odious,  that  none  was  so  humble  as  to  do  it 
reverence. 

*  Quoted  in  Story's  Com.  vol.  1,  p.  288,  note. 


214  IS   DAVIS   A   TRAITOR? 

Nor  do  they  inform  the  reader,  that  the  great  leaders 
of  this  very  party  in  New  England,  became  in  1815,  when 
in  distress,  the  warmest  of  all  existing  advocates  for  the 
rights  and  the  sovereignty  of  individual  States.  They  do 
not  even  drop  a  hint,  that  those  leaders,  those  staunch 
advocates  of  the  sovereignty  of  the  Federal  Government, 
were  the  first  to  insist  on  the  right  of  secession;  a  fact 
which  would  have  detracted  very  much  from  the  weight 
of  their  authority  against  the  doctrine  of  "a  federative 
compact  among  States,"  even  if  they  had  ever  rejected 
that  doctrine. 

History  acquits  the  old  federal  party  of  the  monstrous 
heresy  imputed  to  it.  Having  been  chief  agents  them 
selves  in  framing  "the  federative  compact "  for  the  States; 
and  having  anxiously  watched  the  States  as,  one  after 
another,  each  acceded  to  that  compact;  such  a  heresy,  such 
a  perversion  of  the  facts  falling  under  their  own  observa 
tion,  would  have  been  utterly  beyond  their  power.  How, 
then,  and  why,  did  the  heresy  in  question  raise  its  head  in 
the  Northern  States? 

This  question  is  easily  answered. 

1.  The  doctrine  of  a  compact  is  attended  with  one 
great  inconvenience;  the  inconvenience,  namely,  that  if  it 
be  violated  by  one  of  the  parties,  the  other  parties  are 
absolved  from  its  obligations.  This  great  inconvenience  is 
set  forth  by  Dr.  Paley ;  to  whose  chapter  on  the  subject,  in 
his  Political  Philosophy,  Mr.  Justice  Story  refers.  Now 
this  doctrine  makes  the  stability  of  the  Federal  Compact 
depend  on  the  good  faith  of  all  the  parties;  which  seemed 
quite  too  frail  a  foundation  for  the  Union.  Hence,  the 
doctrine  of  a  federative  compact,  which,  for  forty  years 
had  been  held  by  both  the  great  parties  of  the  United 
States,  was  explained  away,  and  the  will  of  the  strongest 
substituted  in  its  place.  According  to  his  theory,  then,  the 
JJnion  rested,  not  on  the  justice  of  the  parties,  but  on  the 
despotic  power  of  the  dominant  faction.  He  thus  placed 


IS   DAVIS   A    TRAITOR?  215 

the  Union,  by  his  construction,  on  what  he  conceived  to 
be  a  more  solid  foundation  "than  a  federative  compact 
between  the  States."  But  this,  as  we  have  seen,  was  to 
subvert  the  foundation  laid  by  the  fathers  of  the  Union; 
and,  in  order  to  make  good  his  theory,  he  had  to  falsify 
the  whole  political  history  of  the  United  States  during  the 
first  forty  years  of  the  existence  of  the  new  Union ;  espe 
cially  the  views  and  the  authority  of  its  founders. 

2.  The  right  of  secession  had  never  been  seriously  con 
sidered  by  any  party,  so  long  as  the  Union  was  prosperous 
and  happy.     But,  during  the  period  from  1803  to  1815,  the 
great  leaders  of  New  England,  regarding  their  section  as 
grievously  oppressed  in  the  Union,   revolved  the   great 
theme  in  mind,  and.  for  the  first  time  in  the  history  of 
parties,  deliberately  asserted  the  right  of  secession.     In 
view  of  this  alarming  event,  it  became  still  more  impor 
tant,  in  the  opinion  of  Mr.  Justice  Story  and  other  con- 
structionists,  to  deny  the  doctrine  of  a  federative  compact, 
from  which,  as  he  saw  and  admitted,  so  frightful  a  conse 
quence  necessarily  resulted. 

3.  This  denial  became  the  more  indispensable,  in  Judge 
Story's  opinion;  because  Mr.  William  Bawle  had,  in   1825, 
asserted  the  right  of  secession  in  his  work  in  the  Consti 
tution.     Mr.  Justice  Story  alludes  to  the  opinion  of  Mr. 
Rawle,  and,  deploring  it,  he  bent  all  his  energies  and  eru 
dition  to  demolish  the  doctrine  of  a  federative  compact, 
from  which  that  right  necessarily  results.     Thus,  accord 
ing  to  his  theory,  the  Union  was  to  be  hooped  with  bands 
of  iron,  and  not  trusted  to  the  mutual  sympathy  and  good- 
faith  of  its  members. 

4.  But,  however  great  and  commanding  the  influence 
of  Story's  opinion,  or  view  of  the  Constitution,  it  would 
have  been  comparatively  feeble ;  if  it  had  not  been  aided 
by  public  events.    South  Carolina,  feeling  herself  and  some 
of  her  sister  States  grievously  oppressed  in  the  Union,  by 
the  tariffs  of  1824  and  1828;  planted  herself  on  the  great 


216  IS    DAVIS    A   TRAITOR? 

platform  of  State-Eights,  and  nullified  the  act  of  Congress. 
The  indignation  of  the  North  was  aroused.  Nullification, 
it  was  said,  led  directly  to  secession,  or  a  dissolution  of  the 
Union.  The  New  England  States,  which  had  only  fifteen 
years  before  advocated  the  right  of  secession,  now  led  the 
fierce  crusade  against  its  advocates.  John  C.  Calhoun, 
the  great  nullifier,  was  the  mark  of  their  fury.  It  was  in 
this  contest,  as  every  one  knows,  that  the  great  orator  of 
New  England,  Mr.  Webster,  put  forth  "the  greatest  intel 
lectual  eifort  of  his  life,"  if  not  of  the  human  mind.  The 
wrhole  North  was  electrified  by  his  eloquence;  and  became 
intoxicated  with  his  fictions. 

Much  has  been  said  about  the  Northern  and  the  South 
ern  theories  of  the  Constitution.  The  true  word  is,  how 
ever,  the  theories  of  the  majority  and  of  the  minority. 
For  the  Southern  theory,  as  it  is  called,  originated  in  New 
England;  and,  passing  from  minority  to  minority,  found  a 
permanent  resting  place  in  the  South.  Yet  it  may,  with 
truth,  be  called  the  Southern  theory;  since  the  South  has 
always  been  in  the  minority  in  the  new  Union. 

Mr.  "Webster  lived  to  pronounce  a  splendid  eulogy  on 
the  virtues,  the  patriotism,  and  the  genius  of  John  C.  Cal 
houn;  with  whom  he  had  so  long  served  in  the  Senate  of 
the  United  States.  But  the  successors  of  Mr.  Webster 
have,  for  more  than  eighteen  long  months,  held  the  bosom 
friend  and  the  peer  of  John  C.  Calhoun  in  prison  at  For 
tress  Monroe,  as  if  he  were  already  a  convicted  felon  and 
traitor.  Yet  is  it,  as  we  have  seen,  his  only  crime,  that  he 
sat  at  the  feet  of  Thomas  Jefferson,  "the  immortal  author 
of  the  Declaration  of  Independence;"  and  there  learned 
the  right  of  secession.  Shall  the  people,  then,  who  sang 
loud  hozannas  to  the  great  master,  follow  the  equally 
great  disciple  with  the  cry  of  crucify  him,  crucify  him?  Or 
shall  it  be  said,  that  they  voted  the  Presidency  for  the 
one,  and  a  prison  for  the  other? 


CHAPTEK     XIX. 

The  Causes  of  Secession. 

IN  the  preceding  chapters,  the  Constitutional  right  of 
secession  has,  it  seems  to  me,  been  demonstrated.  If  so, 
then  in  the  eye  of  reason,  the  Southern  States  are  acquit 
ted  of  every  offence  against  the  Constitution,  or  the 
supreme  law  of  the  land.  But,  however  clear  a  legal  or 
constitutional  right,  it  may  not  be  always  proper  to  exer 
cise  it.  If  the  Southern  States  exercised  the  right  of 
secession  merely  because  they  possessed  that  right,  or 
merely  because  they  were  beaten  at  an  election,  or  for  any 
such  "light  and  transient  cause;"  then  they  committed  a 
great  wrong.  Then,  although  they  violated  no  law  of  the 
land,  they  committed  a  great  and  grievous  wrong  against 
the  moral  law  of  the  world,  by  a  capricious  exercise  of 
their  sovereign  right  and  power.  Hence,  the  vindication 
of  the  Southern  States  in  the  forum  of  conscience,  as  well  as 
in  that  of  the  law,  demands  an  exposition  of  the  causes  of 
secession.  It  would  require  a  volume  to  do  justice  to  this 
subject;  and  yet,  at  present,  a  brief  sketch  is  all  that  can 
be  attempted. 

The  Balance  of  Power. 

From  the  foundation  of  the  American  Union  to  the  pres 
ent  day,  the  provision  of  its  Constitution  for  the  frac 
tional  representation  of  slaves,  has  been  more  talked  about, 
and  less  understood,  than  any  other  clause  of  that  "sacred 
instrument."  One  would  suppose,  that  if  any  one  really 
11 


218  IS    DAVIS    A    TRAITOR? 

desired  to  ascertain  the  reason  or  design  of  this  "singular 
provision,"  as  it  is  called,  he  would  look  into  the  debates 
of  the  Convention  by  which  it  was  inserted  in  the  Consti 
tution.  In  these  debates,  as  reported  in  "  The  Madison 
Papers,"  the  reason  or  design  of  the  fathers  in  the  enact 
ment  of  that  clause  is  as  clear  as  the  noonday  sun.  Yet, 
in  all  that  has  been  written  by  the  North  on  the  subject, 
there  is  not  even  a  glimmering  of  light  as  to  that  reason 
or  design.  Men  make  books,  says  old  Burton,  as  apothe 
caries  make  medicines,  by  pouring  them  out  of  one  bottle 
into  another.  This  has  most  emphatically  been  the  way 
in  which  men  have  made  books  on  "the  American  Ques 
tion;"  and,  in  the  case  before  us,  the  bottles  were  originally 
filled,  not  at  the  pure  fountains  of  historic  truth,  but  from 
the  turbid  streams  of  ignorance,  falsehood,  and  misrepre 
sentation.  Yet,  for  three  quarters  of  a  century,  has  all 
this  vile  stuff  been  continually  poured  out  of  one  book  into 
another.  Accordingly,  we  find  it  in  a  hundred  books  on 
both  sides  of  the  Atlantic;  uttered  with  just  as  much  con 
fidence  as  if  the  authors  had  some  knowledge  on  the  sub 
ject. 

Thus  are  we  gravely  told,  and  with  great  confidence, 
that  "the  weakest  point  in  the  Constitution  lies  elsewhere. 
It  lies  in  that  truckling  to  the  slave-power  which  is  ob 
vious  in  it —  It  lies  especially  in  that  singular  provision  for 
what  is  termed  'black'  or  'slave'  representation,  where 
by  alone,  amongst  all  species  of  property,  that  in  human 
flesh  is  made  a  source  of  political  power."*  Now,  if  any 
thing  in  history  is  certain,  it  is  that,  after  a  protracted 
debate,  the  Convention  of  1787  agreed  that  population, 
and  population  alone,  should  constitute  the  basis  of  repre 
sentation.  The  slaves  were  not  represented  at  all  as  prop 
erty.  This  is  evident,  not  only  from  the  debates  of  the 
Convention  of  1787,  but  from  the  very  face  of  the  Con- 
"stitution  itself.  "Representatives,"  says  that  document, 

*  History,  by  T.  M.  Ludlow,  pp.  44-5. 


IS   DAVIS   A   TRAITOR?  219 

"  shall  be  apportioned  among  the  several  States  which 
may  be  included  within  this  Union,  according  to  their 
respective  numbers,  (not  one  word  is  said  about  property), 
which  shall  be  determined  by  adding  to  the  whole  num 
ber  of  free  persons,  including  those  bound  to  service  for  a 
term  of  years,  and  excluding  Indians  not  taxed,  three- 
fifths  of  all  other  persons"  Thus,  in  this  very  clause,  the 
slaves  are  called  "persons,"  and  are  to  be  represented  as 
such,  not  as  property.  Hence,  when  Mr.  Greely,  in  his 
"American  Conflict,"  wishes  to  prove  that  the  Constitution 
regards  slaves  as  "persons,"  he  quotes  the  clause  in  ques 
tion.  Nay,  Mr.  Ludlow  himself,  when  it  suits  his  purpose, 
can  recognize  the  truth,  that  the  Constitution  "never 
speaks  of  the  slave  as  a  property,  but  as  a  person."*  If, 
indeed,  slaves  had  not  been  regarded  as  persons,  they 
would  not  have  been  admitted  into  the  basis  of  represen 
tation  at  all. 

Now,  did  the  North  truckle  to  the  South,  in  conceding 
that  slaves  are  "persons?"  Mr.  Paterson,  of  New  Jersey, 
and  some  other  Northern  members,  endeavored  to  ex 
clude  slaves  from  the  basis  of  representation  on  the  ground 
that  they  were  "property;"  but  Mr.  Butler  and  Mr.  C.  C. 
Pinckney,  both  of  South  Carolina,  insisted  that  they  were 
"persons,"  that  they  were  a  portion  of  the  laboring  and 
productive  "population"  of  the  South;  and  as  such,  should 
be  included  in  the  basis  of  representation  on  a  footing  of 
equality  with  other  "inhabitants."  The  Convention  de 
cided  that  they  were  "persons."  Was  this  decision  cor 
rect?  Or  was  it,  on  the  contrary,  a  mean  "truckling  to 
the  slave  power?" 

In  the  declamations  on  this  subject,  it  is  usually  taken 
for  granted  by  Northern  writers,  as  well"  as  by  Mr.  Lud 
low,  that  free  citizens  or  voters  alone  are  included  in  the 
basis  of  representation  for  the  North,  while  three-fifths 
of  the  slaves  are  embraced  in  it  for  the  Soutjj.  Hence, 

*  Page  51. 


220  IS  DAVIS   A   TRAITOR? 

this  is  vehemently  denounced  as  a  "singular  provision," 
as  a  "strange  anomaly,"  as  a  most  undue  advantage  to 
the  South.  But  the  fact  is  not  so.  The  assumption  is 
utterly  false.  By  the  decision  of  the  Convention,  and  by 
the  very  terms  of  the  Constitution,  "the  whole  number  of 
free  persons,"  whether  men,  women,  children,  or  paupers, 
are  included  in  the  basis  of  representation.  All  "  per 
sons,"  of  every  age,  color,  and  sex,  are  included  in  that 
basis.  Hence,  Mr.  Ludlow  is  mistaken  in  callrtig  the 
clause  in  question,  "the  provision"  for  "black"  represen 
tation  ?  The  blacks,  as  such,  were  included  in  the  general 
provision,  and  ranked  as  equal  to  the  whites.  In  like 
manner,  Professor  Cairnes  errs  in  saying  the  clause  under 
consideration  "is  known  as  the  three-fifths  vote."*  No  such 
thing  as  a  "three-fifths  vote"  is  known  to  the  Constitu 
tion  of  the  United  States ;  and  the  name  is  the  coinage  of 
ignorance.  The  three-fifths  clause  has  nothing  to  do  with 
votes  or  voting.  No  slave  could  cast  the  three-fifths,  or 
any  fraction,  of  a  vote.  The  free  blacks  were,  in  most 
cases,  denied  the  exercise  of  the  elective  franchise.  It 
was  in  counting  the  number,  not  of  those  who  should  vote, 
but  only  of  those  who  should  make  up  the  basis  of  repre 
sentation  that  five  slaves  were  to  be  reckoned  equal  to 
three  white  persons,  or  to  three  free  negroes. 

Now,  why  was  this  ?  Had  the  Convention  any  rule  of 
vulgar  fractions,  by  which  a  slave  was  shown  to  be  only 
the  three-fifths  of  a  person  ?  And  if  they  had,  did  not  the 
clause  in  question  result  from  a  mathematical  calculation, 
rather  than  from  a  "truckling  to  the  slave  power?"  or, 
if  that  was  treated  as  a  question  of  vulgar  fractions,  why 
did  the  Convention  stop  there  ?  Why  not  raise  other 
questions  of  the  same  kind  ?  Why  not  consider  the  prob 
lem,  if  a  full-grown  slave  is  only  the  three-fifths  of  a  per 
son,  what  fraction  of  a  person  is  the  infant  of  a  day  old, 
before  thg  power  of  thought,  or  of  local  motion,  has  even 

*  The  Slave  Power,  chap.  vi. 


IS   DAVIS   A   TRAITOR?  221 

begun  to  infold  itself  in  him  or  her?  The  truth  is,  that 
the  Convention  of  1787  indulged  in  no  such  contemptible 
trifling  with  the  great  practical  questions  demanding  a 
solution. 

The  States  were  exceedingly  jealous  of  "the  sovereign 
ty,  freedom,  and  independence,"  which  they  had  express 
ly  retained  under  the  Articles  of  Confederation.  The 
Federal  Government  claimed,  on  the  other  hand,  an  aug 
mentation  of  its  powers;  a  claim  eloquently  urged  by  the 
tongues  and  pens  of  many  of  the  ablest  men  in  America. 
Hence  arose  the  great  conflict  between  the  States  and  the 
central  Power;  which,  from  that  day  to  this,  has  agitated 
the  minds  of  the  Anglo-Americans.  In  approaching  this 
conflict,  the  Convention  first  determined,  in  outline,  the 
form  of  the  General  Government.  It  was  readily  agreed, 
that  it  should  be  a  Rebublic,  with  a  Legislature  consisting 
of  two  branches,  a  Senate  and  House  of  Representatives, 
a  Judiciary,  and  an  Executive.  The  next  question  was, 
what  powers  shall  the  States  delegate  to  this  General 
Government,  this  grand  Republic?  After  debating  this 
question  for  some  time,  the  Convention  discovered  that  it 
had  begun  at  the  wrong  end.  None  of  the  parties  were 
willing  to  say  with  what  powers  the  new  Government 
should  be  invested,  until  it  was  ascertained  what  share 
they  were  to  have  in  the  exercise  of  those  powers. 
Hence  the  Convention  found  it  necessary  to  retrace  its 
steps,  and  begin  with  the  question  of  the  distribution  of 
power  among  the  various  members  of  the  Union.  In 
this  contest  for  power,  each  and  every  party,  of  course, 
claimed  "the  lion's  share."  But  each  and  every  party 
could  not  have  "the  lion's  share."  Hence  the  two  mem 
orable  quarrels  or  controversies  of  the  Convention  of 
1787;  the  one  between  "the  large  and  the  small  States," 
and  the  other  between  "the  North  and  the  South." 
Much  is  known  about  the  first  of  these  quarrels;  but  the 
history  of  the  last  yet  remains  to  be  written.  Its  very 


222  IS    DAVIS   A   TRAITOR? 

first  chapter  is  still  enveloped  in  the  most  profound  ob 
scurity.  I  speak  advisedly,  and  with  the  proofs  on  all 
sides  around  me,  when  I  say  that  the  Americans  them 
selves  have  not  studied  this  first  chapter  in  the  history  of 
the  great  quarrel  between  "the  North  and  the  South." 
Let  us  look  into  it,  then,  and  see  what  it  teaches. 

In  order  to  adjust  and  settle  the  two  quarrels  above 
mentioned,  Mr.  Madison  laid  down  the  general  principle, 
that  "wherever  there  is  danger  of  attack,  there  should  be 
a  constitutional  power  of  defence."  No  principle  could 
have  been  more  reasonable  or  just;  since  the  object  of  all 
government  is  to  protect  the  weak,  or  those  most  exposed 
to  danger,  against  the  aggressions  of  the  powerful.  The 
Convention,  without  difficulty,  agreed  to  the  above  prin 
ciple,  when  only  stated  in  general  terms;  but,  as  usual  in 
such  cases,  a  great  difference  of  opinion  arose  in  regard  to 
the  application  of  the  principle. 

The  small  States,  for  example,  fearing  lest  the  large 
States  should  "annex"  them,  or  swallow  them  up  in  some 
other  way,  refused  to  increase  their  power  in  the  Union. 
They  insisted,  that  'each  State,  whether  small  or  great, 
should  have  precisely  the  same  power  in  both  branches  of 
Congress.  This  would  have  placed  all  the  powers  of  the 
Federal  Legislature  in  the  hands  of  the  small  States. 
They  were  willing,  nay,  they  were  eager  to  possess  tlxem 
all;  just  as  if  they  had  not  the  least  fear  that  they  could 
ever  be  tempted  to  do  the  least  injury  to  the  large  States. 
But  the  large  States,  not  having  this  perfect  confidence  in 
the  justice  of  their  little  neighbors,  refused  to  entrust  them 
with  the  supreme  control  and  destiny  of  the  Union. 
Hence  they  refused  "the  lion's  share"  to  the  small  States. 
They  contended,  however,  for  this  share  for  themselves. 
They  contended  that  each  State  should,  in  each  branch  of 
the  Federal  Legislature,  have  a  power  exactly  propor 
tioned  to  its  size  or  population;  an  arrangement  which 
would  have  given  the  absolute  control  of  the  whole  gov- 


IS   DAVIS   A   TRAITOR?  223 

ernment  of  the  thirteen  States  to  three  States  alone.  Yet 
those  three  States, — (Massachusetts,  Pennsylvania,  and 
Virginia, — )  with  a  perfect  unanimity  and  a  burning  zeal, 
contended  for  this  supreme  dominion  in  the  new  Union. 
The  small  States,  till  then  equal  in  constitutional  power 
with  the  large  ones,  resented  this  as  a  design  to  degrade 
and  enslave  them.  This  contest  was  the  most  obstinate 
and  violent  one  of  the  Convention  of  1787.  "The  truth 
is,"  said  Alexander  Hamilton,  in  regard  to  this  very  quar 
rel,  "it  is  a  contest  for  power,  not  for  liberty."  Each 
party,  in  its  eagerness  to  grasp  the  supreme  power, 
neglected  the  rights  and  interests  of  the  other. 

This  violent  contest,  which  threatened  to  break  up  the 
Convention  and  blast  all  hope  of  a  "more  perfect  Union," 
was  finally  settled  by  one  of  "the  compromises  of  the  Con 
stitution."  It  was  agreed,  that  the  States  should  retain 
their  equality  in  the  Senate,  each  having  two  representa 
tives  in  that  body;  and  that  they  should  be  represented  in 
the  other  branch  of  Congress  in  proportion  to  their  popu 
lations.  Thus  the  small  States  controlled  the  Senate;  and 
the  large  ones,  the  House  of  Representatives.  Hence 
neither  party  could  oppress  the  other.  As  no  law  could 
be  passed  without  the  concurrence  of  both  Houses  of  Con 
gress;  so  it  must  obtain  the  consent  of  the  small  States  in 
the  one,  and  of  the  large  States  in  the  other.  Each  class 
of  States  held  a  check  upon  the  power  of  the  other.  Thus, 
where  "there  was  a  danger  of  attack,"  there  was,  on  both 
sides,  given  "a  constitutional  power  of  defence."  This 
was,  in  deed  as  well  as  in  word,  to  "establish  and  ordain 
liberty."  Hence  the  most  violent  contest  of  the  Conven 
tion  of  1787  ceased  to  agitate  the  bosom  of  the  new  Union. 
This  admirable  arrangement  was  proposed  by  Oliver  Ells 
worth,  of  Connecticut,  and  recommended  on  the  ground 
that,  in  a  Republic,  it  is  always  necessary  to  protect  the 
minority  against  the  tyranny  of  the  majority. 

The  same  principles  and  policy  governed  the  Conven- 


224  IS   DAVIS    A   TRAITOR? 

tion  in  its  attempt  to  adjust  and  settle  the  great  antago 
nism  between  the  North  and  the  South.  Mr.  Madison  was 
so  deeply  impressed  with  the  importance  of  arming  each 
of  these  sections  with  a  defensive  power  against  the  other, 
that  he  proposed  "the  numbers  of  free  white  inhabitants" 
as  the  basis  of  representation  in  one  House  of  Congress, 
and  the  whole  population,  including  blacks  as  well  as 
whites,  as  the  basis  of  representation  in  the  other. 
This  distribution  of  power  would  have  given  the  North  a 
majority  in  one  branch  of  the  Legislature,  and  the  South 
a  majority  in  the  other.  But  the  proposition  failed.  Mr. 
Madison  did  not  urge  it,  indeed,  because,  as  he  said,  it  pre 
sented  a  cause  of  quarrel  which  was  but  too  apt  to  arise  of 
itself. 

After  the  States  were  made  equal  in  the  Senate,  each 
having  two  representatives  in  that  body,  the  North  had 
the  entire  control  of  it.  As  there  were  eight  Northern 
States,  (Delaware  was  then  considered  a  Northern  State), 
and  only  five  Southern  States;  so  the  North  had  a  major 
ity  in  the  Senate  of  16  to  10.  Hence,  if  the  South  was  to 
have  any  defensive  power  at  all,  it  should  have  had  a  ma 
jority  of  representatives  in  the  other  branch  of  Congress. 
Accordingly,  Southern  members  insisted  on  the  full  rep 
resentation  of  the  whole  population  of  the  South,  as  well  as 
of  the  North,  in  order  that  their  section  might  have  a 
majority  in  one  branch  of  the  common  Legislature.  The 
North,  on  the  contrary,  insisted  that  the  slaves  should  be 
entirely  excluded  from  the  basis  of  representation ;  which 
would  have  given  that  section  a  decided  majority  in  both 
branches  of  Congress.  Thus,  while  the  South  contended 
for  a  power  of  self-defence  or  protection;  the  North 
aimed  at  no  less  than  absolute  control  and  dominion. 
The  South  would  not  submit.  The  North  and  the  South 
were  then,  as  they  afterward  appeared  to  De  Tocqueville, 
"more  like  hostile  nations,  than  rival  parties,  under  one 
government."  The  fierce  contest  for  power  between 


IS    DAVIS   A   TRAITOR?  225 

them  resulted  in  the  compromise  of  the  three-fifths  clause 
of  the  Constitution.  In  proposing  this  clause,  Mr.  Wilson, 
of  Pennsylvania,  said  it  could  not  be  justified  on  principle, 
whether  property  or  population  were  regarded  as  the 
basis  of  representation,  but  that  it  was  deemed  "necessa 
ry  as  a  compromise  "'between  the  North  and  the  South. 
As  such  it  was  seconded  by  Mr.  C.  C.  Pinckney,  of  South 
Carolina,  and  as  such  it  wTas  adopted  by  the  Convention. 
This  clause  was,  then,  a  compromise,  not  between  abstract 
metaphysical  principles  of  government,  but  between  the 
opposite  and  conflicting  claims  of  the  two  rival  sections. 
Did  the  North,  then,  "truckle  to  the  slave  power"?  It  is 
certain,  that  she  grasped  at  and  gained  a  majority  in  both 
branches  of  the  common  Legislature.  For,  in  spite  of 
the  clause  in  question,  the  North  had  a  majority  of  36  to 
29  in  the  House  of  Eepresentatives,  as  well  as  of  16  to  10 
in  the  Senate;  a  share  which  certainly  ought  to  have  sat 
isfied  any  ordinary  lion. 

But  it  is  the  fate  of  a  democracy  to  be  governed  more  by 
words  than  by  ideas,  more  by  "telling  cries"  than  by 
truth.  The  cry  has  always  been  that  the  slaves,  who  had 
no  wills  of  their  own,  were  represented  in  Congress;  and 
that  this  "singular  provision,"  this  "strange  anomaly," 
had  resulted  from  a  base  "truckling  to  the  slave  power." 
But  for  this  provision,  says  Professor  Cairnes,  *  there 
seemed  to  be  nothing  in  the  Constitution,  "which  was 
not  calculated  to  give  to  numbers,  wealth,  and  intelli 
gence,  their  due  share  in  the  government  of  the  country." 
Did  the  general  clause,  then,  which  places  idiots,  paupers, 
free  negroes,  and  infants  of  all  ages,  in  the  basis  of  repre 
sentation,  provide  for  nothing  but  a  representation  of 
"the  intelligence  and  wealth  of  the  country?"  The 
truth  is,  that  none  of  these  clauses  were  represented  in 
Congress;  they  were  merely  considered  in  the  difficult 
question  of  the  distribution  of  power  among  the  States 

*The  Slave  Power,  p.  164. 
11* 


226  IS   DAVIS   A    TRAITOR? 

and  the  Sections.  The  only  persons  really  represented 
were  the  voters,  who  had  the  legal  right  to  choose  their 
own  representatives.  It  was  in  this  way,  and  in  this  way 
alone,  that  the  Convention  sought  to  secure  a  representa 
tion  of  the  "wealth  and  intelligence"  of  the  country. 
But  who  cared  for  the  truth?  The  telling  cry,  that 
slaves  were  represented  in  Congress,  inflamed  the  pas 
sions  of  the  North,  and  served  the  purpose  of  demagogues 
infinitely  better  than  a  thousand  truths.  Hence  the 
world  has  been  filled  with  clamors  about  "the  slave 
representation  of  the  South."  The  deceivers  are,  howev 
er,  careful  to  conceal  the  fact,  that  all  classes  of  "persons," 
except  the  slaves,  are  reckoned  at  their  full  value  in  con 
stituting  the  basis  of  representation.  The  women  and 
children  of  the  North  alone,  many  of  whom  were  born  in 
foreign  countries  and  had  never  been  naturalized  in 
America,  have  been  the  source  of  far  greater  political 
power,  than  that  which  has  resulted  from  the  whole  pop 
ulation  of  the  South.  Is  it  not  much  nearer  to  the  truth, 
then,  to  say  that  the  South  has  been  governed  by  the 
women  and  children  of  the  North,  than  that  "the  North 
has  been  governed  by  the  slaves  of  the  South"? 

Immense,  indeed,  has  been  the  advantage  of  the  clause 
in  question  to  the  South !  Only  let  Mr.  Ludlow,  or  one 
of  his  school,  estimate  this  advantage,  and  it  is  sufficient 
to  astonish  the  world!  It  gives  to  "every  poor  white" 
at  the  South,  "however  ignorant  and  miserable,"  "ten 
times  the  political  power  of  the  Northerner,  be  he  never  so 
steady,  never  so  wealthy,  never  so  able."*  How  wonder 
ful  the  disparity!  And,  considering  that  "all  men  are 
created  equal,"  how  infinitely  more  wonderful,  that  the 
wealthy  and  the  able  Northerner  should  have  so  long  and 
so  patiently  submitted  to  such  an  amazing  inequality! 
What !  The  rich  Northerner,  the  merchant  prince,  or  the 
great  lord  of  the  loom,  only  the  one-tenth  part  of  the 

*  History,  p.  49. 


IS    DAVIS   A   TRAITOR?  217 

political  power  of  the  "poor  white"  at  the  South!  Is  it 
possible?  Mr.  Ludlow  proves  the  whole  thing  by  figures; 
and  "figures,"  it  is  said,  "cannot  lie."  Let  us  see,  then, 
this  wonderful  proof  of  the  wonderful  fact.  "Suppose," 
says  Mr.  Ludlow,  "300,000  be  the  figures  of  population 
required  to  return  a  representative,  then,  whilst  300,000 
freemen  of  the  North  are  required  for  the  purpose,  30,000 
Southerners,  owning  collectively  450,000  slaves,  or  15  on 
an  average  (many  plantations  employing  hundreds)  are 
their  equals  politically,  and  every  "poor  white,"  however 
ignorant  and  miserable,  has  his  vanity  gratified  by  stand 
ing  at  the  ballot-box  the  equal  of  his  richest  slave-holding 
neighbor,  whilst  each  of  them  is  equally  invested  with 
ten  times  the  political  power  of  the  Northerner,  be  he 
never  so  steady,  never  so  wealthy,  and  n'ever  so  able." 
But  he  must,  indeed,  have  been  a  most  "ignorant  and 
miserable"  white,  if  he  could  have  had  his  vanity  grati 
fied,  or  his  judgment  swayed,  by  any  such  logical  pro 
cess  or  conclusion.  This  specimen  of  logic,  or  rather  of 
legerdemain,  only  assumes  that  none  but  "the  30,000 
Southerners,"  with  their  "450,000  slaves,  or  fifteen  on  an 
average,"  are  included  in  the  basis  of  representation. 
But  since,  in  fact,  all  persons  are  included  in  that  basis,  Mr. 
Ludlow  should  have  taken  some  little  pains  to  explain  to 
his  poor  ignorant  readers  how  it  is  possible  for  eight  mil 
lions  of  whites  to  own  only  four  millions  of  blacks;  and 
yet  for  each  white  to  own,  "on  an  average,"  as  many  as 
"fifteen  slaves."  It  would  seem,  without  much  calcula 
tion,  that,  in  such  a  case,  there  could  be  only  one  slave  ta 
every  two  whites.  If  so,  then  if  the  slaves  had  been 
regarded  as  whole  "persons;"  the  Southerner  would  have 
had  only  one  and  a  half  times  the  power  of  the  North 
erner.  But  as,  in  fact,  the  slave  was  counted  as  little 
more  than  the  half  of  a  person ;  so  the  Southerner  pos 
sessed  only  a  little  more  than  one  and  a  quarter  times  as 
much  political  power  as  his  Northern  neighbor.  There 


228  IS   DAVIS   A   TRAITOR? 

was,  then,  no  reason  why  the  vanity  of  the  poor,  ignor 
ant  white  of  the  South  should  have  been  so  highly  grati 
fied,  nor  why  the  pride  of  the  rich  nabob  of  the  North 
should  have  been  so  deeply  wounded, 

But  this  whole  way  of  viewing  the  subject  is,  in  reality, 
perfectly  puerile.  "What  has  the  political  power  of  the  indi 
vidual  to  do  with  such  a  question?  There  is  the  broad 
fact,  acknowledged  by  all  parties  and  all  sections,  that,  at 
the  time  the  Constitution  was  formed,  the  South  was  supe 
rior  to  the  North  both  in  wealth  and  population.  Hence, 
if  either  wealth  or  population  had  been  made  the  basis  of 
representation,  and  fairly  carried  out  in  practice,  the 
South  would  have  had  the  majority  in  one  branch  of  Con 
gress.  As  it  was,  however,  the  North  resolutely  fought 
for  and  secured  the  majority  in  both  branches  thereof. 
Was  not  this,  then,  sufficient  to  gratify  the  pride  of  the 
North,  as  well  to  humble  that  of  the  South.  Suppose  that 
in  a  society  of  ten  millions  of  people,  eight  millions  are 
united  by  one  interest,  and  the  remaining  two  millions  by 
another  interest.  Suppose,  again,  that  in  order  to  get  the 
two  millions  to  enter  into  such  a  society,  each  individual 
of  them  had  been  allowed  two  votes,  or  twice  as  much 
power  as  an  individual  of  the  eight  millions.  Would  this 
render  the  two  millions  secure?  Would  this  give  the 
minority  a  "defensive  power"  against  the  majority? 
"Ignorant  and  miserable,"  indeed,  must  be  the  individual 
in  such  a  minority,  if  his  vanity  could  be  gratified  by  the 
possession  of  twice  as  much  power  as  an  individual  of  the 
majority,  while  that  majority  had  the  power  to  rob  him 
of  both  his  purse  and  his  good  name. 

The  only  strange  thing  in  the  transaction  is,  why  the 
South  should  have  consented  to  enter  into  so  unequal  a 
union  with  the  North.  Why  she  should  have  entrusted  her 
rights,  her  interests,  her  honor,  her  glory,  and  her  whole 
destiny,  to  the  care  and  keeping  of  a  foreign  and  hostile 
majority.  This  seems  the  more  wonderful;  because,  at 


IS   DAVIS   A   TRAITOR?  229 

that  time,  every  statesman  in  America  regarded  nothing 
as  more  certain  than  the  tyranny  of  the  majority.  "Com 
plaints  are  everywhere  heard,"  said  Mr.  Madison,  in  The 
Federalist,  "  from  our  most  considerate  and  virtuous  citi 
zens that  measures  are  too  often  decided,  not  accord 
ing  to  the  rules  of  justice,  and  the  rights  of  the  minor  par 
ty,  but  by  the  superior  force  of  an  interested  and  over 
bearing  majority."* 

It  was  the  grand  object  of  the  Convention  of  1787  to 
correct  this  tendency,  this  radical  vice,  if  not  this  incura 
ble  evil,  of  all  democratic  republics.  The  evils  under  which 
the  country  labors,  it  was  said  in  that  Convention,  are,  on 
all  hands,  "traced  to  the  turbulance  and  violence  of  democ 
racy,"  to  the  injustice  and  tyranny  of  the  majority.  "To 
secure  the  public  good,  and  private  rights,"  said  The  Fed 
eralist,  "against  the  danger  of  such  a  faction,  ({.  e.  of  such 
"an  interested  and  overbearing  majority,")  and  at  the 
same  time  to  preserve  the  spirit  and  the  form  of  a  popular 
government,  is  then  the  great  object  to  which  our  inquiries 
are  directed.  Let  me  add,  that  it  is  the  great  desidera 
tum,  by  which  alone  this  form  of  government  can  be  res 
cued  from  the  opprobrium  under  which  it  has  so  long 
labored,  and  be  recommended  to  the  esteem  and  adoption 
of  mankind."  f  Did  the  South,  then,  with  her  eyes  open, 
willingly  put  her  neck  in  the  yoke  of  such  a  majority?  If, 
as  every  Southern  statesman  knew  perfectly  well,  "it  is 
of  great  importance  in  a  republic  to  guard  one  part  of 
society  against  the  injustice  of  another  part;"  J  did  the 
South  really  fail  to  demand  such  a  safeguard?  Did  she 
place  herself  under  the  rule  of  the  North,  without  taking 
any  security  for  her  protection,  without  claiming  any 
"'constitutional  power  of  defence?"  Nothing  was  further 
from  her  thoughts.  If  she  had  been  seduced  into  the 
Union  by  the  idea,  by  the  immense  advantage,  that  each 
of  her  citizens  would  have  a  little  more  power  in  one 

*No.  x.  fFederalist  No.  x.  %  Ibid. 


230  IS    DAVIS   A    TRAITOR? 

branch  of  Congress  than  those  of  the  North;  she  would 
have  been  the  weakest  and  most  contemptible  of  creatures. 

The  citizen  of  a  small  State,  such  as  Delaware  or  Rhode 
Island,  might  have  had  ten,  or  twenty,  or  thirty  times 
the  power  in  the  other  House  of  Congress,  which  a  cit 
izen  of  Pennsylvania  or  Yirginia  possessed;  and  yet  this 
would  not  have  satisfied  him  unless  the  small  States 
could  have  controlled  that  branch  of  the  Legislature. 
This  control  of  the  Senate  was  demanded  for  the  small 
States,  as  one  of  the  indispensable  conditions  of  Union,  and 
this  demand  was  conceded  to  them;  in  order  that  the 
minority  might,  in  this  instance,  enjoy  that  freedom, 
and  independence,  which  it  had  resolutely  refused  to  hold 
at  the  mercy  of  the  majority. 

By  all  the  principles,  then,  of  the  Convention  of  1787, 
by  the  great  object  for  which  that  Convention  assembled, 
by  the  very  nature  and  design  of  all  constitutional  repub 
lics  ;  they  were  bound  to  protect  the  minority  against  the 
majority.  They  were,  especially,  bound  to  protect  the 
South  against  the  North;  the  weaker  and  the  richer  sec 
tions  against  the  stronger  and  the  more  rapacious.  Ac 
cordingly,  this  was  the  grand  'object  of  the  Convention. 
The  design  was  good;  but  the  execution  was  bad.  The 
South  insisted  on  the  three-fifths  clause,  and  some  North 
ern  members  resisted  its  enactment;  because  it  was  be 
lieved,  on  both  sides,  that  this  would  ultimately  give  the 
South  a  majority  in  the  House  of  Representatives.  It 
would,  as  every  one  knew,  give  the  North  the  majority 
at  the  outset;  but  population  was,  before  the  adoption  of 
the  new  Union,  so  much  more  rapidly  increasing  at  the 
South  than  at  the  North,  that  the  Convention  believed 
that  the  South  would  soon  gain  the  ascendency  in  the 
lower  House  of  Congress.  The  debates  of  the  Conven 
tion  bear  ample  and  overwhelming  testimony  to  the  prev 
alence  of  this  belief.  The  speeches  of  Madison,  Mason, 
Pinckney,  Butler,  and  others  from  the  South,  as  well  as 


IS   DAVIS   A    TRAITOR?  231 

of  Morris,  King,  Wilson,  and  others  from  the  North,  con 
clusively  show  that  the  Convention  intended  to  allow  the 
South  the  prospect  of  a  majority  in  one  branch  of  Con 
gress.  Such  was  the  object  and  design  of  the  three-fifths 
clause.  Such  was  the  reason  of  the  Convention  for  ad 
mitting  a  fraction  of  the  slave  population  into  the  basis 
of  representation.  From  this  point  of  view,  that  provis 
ion  appears  as  reasonable  and  just  to  every  thinking  man, 
as  from  any  other  it  seems  strange,  singular,  anomo- 
lous.  It  was,  as  Eufus  King,  of  Massachusetts,  declared 
in  the  Convention,  due  to  the  South,  as  a  constitutional 
jfSwer  of  defence,  or  protection,  in  the  new  Union. 

This  "singular  provision,"  then,  about  which  so  much  has 
been  said  and  so  little  known,  did,  according  to  the  design 
of  its  authors,  lie  at  the  very  foundation  of  the  Constitu 
tion  of  the  United  States.  Neither  the  large  States  nor 
the  small  States,  neither  the  North  nor  the  "South,  would 
agree  to  enlarge  the  powers  of  the  common  government, 
until  they  could  first  see  how  those  powers  were  to  be  dis 
tributed  among  themselves  as  the  principal  parties  to  "the 
compact  of  the  Constitution."  Neither  the  North  nor  the 
South  would,  for  one  moment,  have  dreamed  of  entering 
into  the  new  Union,  if  it  had  believed  that  the  other 
would  continue  to  have  a  majority  in  both  branches  of  the 
Federal  Legislature.  Neither  would  have  consented  thus 
to  hold  its  rights  and  interests  at  the  mercy  of  the  other. 
Each  was,  as  the  debates  show,  perfectly  willing  to  hold 
the  reins  of  empire  and  dominion  over  the  other.  But 
while  each  was  thus  perfectly  willing  to  rule,  it  had  some 
little  objection  against  being  ruled.  It  could  easily  trust 
itself,  but  not  its  rival,  with  the  control  of  the  supreme 
power,  and  it  was,  no  doubt,  amply  prepared  to  bear  with 
becoming  fortitude  any  hardship  or  danger,  which  might 
result  to  its  ally  from  such  an  arrangement  in  its  own 
favor.  Hence  the  absolute  necessity  of  the  compromise  in 
question.  On  no  other  terms,  or  conditions,  could  the  new 


232  IS    DAVIS    A   TRAITOR? 

Union,  with  its  vastly  augmented  powers,  have  arisen 
between  the  two  great  sections,  which  were  so  violently 
agitated  and  repelled  by  similar  electricities.  That  "com 
promise,"  then,  that  "singular  provision,"  that  partial 
admission  of  slaves  into  the  basis  of  representation,  was 
introduced  and  enacted  to  adjust  the  balance  of  power 
between  the  North  arid  the  South.  It  w,as  one  of  the  fun 
damental  principles  of  the  Constitution,  without  which 
"the  more  perfect  Union"  could  not  have  been  formed 
between  the  sections. 

The  three-fifths  clause  or  compromise,  then,  intended  to 
give  the  one  section,  as  well  as  the  other,  a  defensive  pow 
er  in  the  new  Union,  was  absolutely  indispensable  to  the 
formation  of  that  Union.  Such  a  defensive  power  was, 
indeed,  deemed  by  a  majority  of  the  fathers  of  the  Con 
stitution,  absolutely  indispensable  to  the  safety,  freedom, 
and  independence  of  each  of  the  sections  in  the  Union. 
Yet,  however  strange  it  may  seem,  no  public  man  in 
America  has,  from  that  day  to  this,  taken  the  pains  to 
make  himself  acquainted  with  the  reason  and  design  of 
that  fundamental  provision  of  the  Constitution  of  the 
United  States! 

The  author  of  the  "American  Conflict"  regards  slaves 
as  "human  beings";  and  quotes  the  clause  in  question, 
"three-fifths  of  all  other  persons"  to  prove  that  the  Con 
stitution  regards  them  in  the  same  light.  Why,  then,  says 
he,  were  they  not  represented  "like  other  human  beings, 
like  women  and  children,  and  other  persons,  ignorant, 
humble,  and  powerless,  like  themselves?"  The  answer  is 
very  easy.  Although  the  Convention  did,  as  their  pro 
ceedings  show,  adopt  population  on  the  basis  of  represen 
tation;  yet  was  the  majority  more  bent  on  the  possession 
of  power,  than  on  the  preservation  of  their  logical  con 
sistency.  If.  instead  of  compromising  the  difficulty,  the 
South  had  persisted  in  pushing  the  principle  adopted  by 
the  Convention  to  its  logical  conclusion ;  then  would  the 


IS   DAVIS    A   TRAITOR?  233 

great  design  of  that  body  of  legislators  have  been  spoiled, 
and  all  prospects  of  the  "more  perfect  Union"  blown 
into  thin  air.  So  much  for  one  horn  of  his  formidable 
dilemma.  "If,  on  the  other  hand,"  says  he,  "you  con 
sider  them  property — mere  chattels  personal,  why  should 
they  be  represented  any  more  than  ships,  or  houses,  or 
cattle?  Here  is  a  nabob,  who  values  his  favorite  high 
bred  horse  at  five  thousand  dollars,  and  five  of  his  able 
bodied  negroes  at  the  same  amount.  Why  should  his 
five  negroes  count  as  three  men  in  apportioning  the  rep 
resentatives  in  Congress  among  the  several  States,  while 
the  blooded  horse  counts  for  just  nothing  at  all?"  Here, 
again,  the  answer  is  perfectly  easy.  The  slaves  were 
not  counted  as  property  at  all;  and,  consequently,  there 
was  no  inconsistency  in  excluding  horses,  or  other  quadru 
peds,  from  the  basis  of  representation.  Thus,  neither  the 
horn  of  the  dilemma  is  quite  as  unanswerable  as  the  au 
thor  imagines  it  to  be,  and  utterly  fails  to  show  the  ab 
surdity  of  the  clause  in  question  as  one  of  the  "unsightly 
and  anomolous  "  excrescences  of  the  slave  power. 

In  reply  to  the  two  questions  of  his  own  dilemma 
the  author  says:  "We  can  only  answer  that  Slavery  and 
Reason  travel  different  roads,  and  that  he  strives  in  vain 
who  labors  to  make  these  roads  even  seem  parallel."  Such 
is  his  profound  commentary  on  one  of  the  most  important 
clauses,  one  of  the  most  indispensable  provisions,  of  the 
Constitution  of  his  country.  He  is,  in  the  same  spirit, 
pleased  to  speak  of  this  provision  of  the  Constitution,  as 
if  it  had  been  hastily  adopted  by  the  Convention,  "  with 
out  much  debate  or  demur;"*  and  that,  too,  just  after  he 
had  quoted  the  undeniable  words  of  one  of  the  most  cele 
brated  members  of  the  Convention,  which  show  that  it 
had  "been  settled"  only  "after  much  difficulty  and  delib 
eration.  "•(•  Roger  Sherman  was  right;  and  Horace  Greely 
was  wrong.  The  Convention  had  something  more  to  do 

*  The  American  Conflict,  p.  46.  f  Ibid  p.  43. 


234  IS   DAVIS   A   TRAITOR? 

than  merely  to  "split  the  difference"  between  two  hairs, 
or  abstractions;  they  had  to  adjust  the  balance  of  power 
between  the  two  great  rival  sections  of  the  United  States ; 
a  problem  which  lay  at  the  very  foundation  of  the  new 
Union,  and  upon  the  satisfactory  solution  of  which  the 
whole  superstructure  was  destined  to  depend.  It  is 
absurd,  as  well  as  untrue,  to  say  that  such  a  question  was 
settled  without  much  difficulty.  It  exercised,  to.  the 
utmost,  all  the  sagacity  and  wisdom  of  the  Convention  of 
1787.  That  wisdom  is,  no  doubt,  utter  foolishness  to  the 
rabid  rage  of  radical  reformers ;  which  never  fails  to  con 
demn  constitutions  and  laws  without  even  knowing,  or 
caring  to  know,  the  reasons  on  which  they  are  founded. 

"Slavery  and  Eeason"  have,  it  is  true,  often  travelled 
"different  roads."  But,  in  the  case  before  us,  the  South 
would  have  been  glad  to  travel  the  same  road  with  Reason, 
and  follow  the  principle  of  the  Convention  to  its  logical 
conclusion.  But  the  sturdy  North  would  not  listen  to 
that  conclusion.  Hence,  if  the  South  departed  from  the 
road  of  Eeason  at  all,  it  was  in  order  to  meet  the  hard 
demands  of  the  North,  and  join  in  the  Union,  which  has 
proved  her  ruin. 

It  proved  her  ruin ;  just  because  the  balance  of  power, 
which  the  fathers  intended  to  establish  between  the  two 
sections,  was  overthrown  and  destroyed.  That  equilib 
rium,  or  balance  of  power,  was,  in  the  opinion  of  the 
fathers,  indispensable  to  the  safety,  freedom,  and  inde 
pendence  of  each  section  in  the  Union;  and  its  destruc 
tion  has  illustrated  and  confirmed  the  wisdom  of  their 
decision. 

On  this  subject,  a  distinguished  Northern  writer,  in 
1860,  used  the  following  language: 

"At  the  time  of  the  adoption  of  the  federal  Constitution 
the  condition  of  slaves  was  very  different  at  the  South 
from  what  it  has  since  become.  At  that  time  there  was, 
as  we  have  shown  in  a  previous  chapter,  no  large  branch 


IS   DAVIS   A   TRAITOR?  235 

of  industry  to  engage  the  blacks,  and  their  future  fate 
was  matter  of  anxiety.  The  progress  of  the  cotton  cul 
ture  has  changed  that,  and  the  interests  of  millions  of 
whites  now  depend  upon  the  blacks.  The  opinions  of 
statesmen  of  that  day  were  formed  upon  existing  facts; 
could  they  have  seen  fifty  years  into  the  future  their 
views  upon  black  employment  would  have  undergone  an 
entire  change.  The  blacks  were  then  prospectively  a  bur 
den;  they  are  now  an  absolute  necessity.  They  then 
threatened  American  civilization;  they  are  now  its  sup 
port.  With  multiplying  numbers  they  have 'added- to  the 
national  wealth.  They  have  become  the  instruments  of 
political  agitation,  while  they  have  conferred  wealth  upon 
the  masses. 

From  the  moment  of  the  formation  of  the  Federal 
Union  there  commenced  a  struggle  for  political  power 
which  has  not  ceased  to  be  directed  against  the  Slave 
States.  The  instrument  of  union,  while  it  provided  for 
the  extinction  of  the  slave-trade,  which  then  formed  so 
large  a  portion,  of  Northern  traffic,  contained  also  a  pro- 
vion  for  black  representation  in  the  Southern  States,  stip 
ulating  that  that  representation  should  not  be  changed 
until  1808,  and  thereafter  only  by  a  vote  of  three-fourths 
of  all  the  States.  .  That  provision  Has  been  the  ground-work 
of  that  constant  Northern  aggression  upon  Southern  interests 
which  has  so  successfully  gained  on  the  federal  power  until 
now  it  imagines  the  desired  three-fourths  is  within  its  reach, 
when  the  South,  with  its  interests,  will  be  at  the  feet  of  the 
abolitionists.  The  South  has  stood  steadily  on  its  defence, 
but  while  the  circle  has  narrowed  in  upon  it,  the  North 
has  not  ceased  to  clamor  against  Southern  aggression! 
Like  Jemmy  Twitcher,  in  the  farce,  who,  having  robbed  a 
passenger,  loses  the  plunder,  and  exclaims,  "there  must 
be  some  dishonest  person  in  the  neighborhood!"  *  *  * 

The  original  13  States  that  adopted  this  Constitution 
were  all  Slave  States  with  the  exception  of  Massachusetts, 


236  IS   DAVIS   A   TRAITOR? 

which,  ^although  it  then  held  no  slaves  had  an  interest  in 
continuing  the  slave  trade,  in  opposition  to  the  wishes  of 
the  Slave  States.  The  struggle  in  the  Convention  in  re 
lation  to  the  discontinuance  of  the  slave-trade,  was  be 
tween  the  New  England  States,  that  desired  the  traffic, 
and  Virginia  and  Delaware  that  wished  no  more  slaves, 
while  those  Southern  States  that  had  but  a  few  blacks  de 
sired  to  import  them  without  tax.  On  the  vote  New 
Hampshire  and  Massachusetts  voted  to  continue  the 
trade  until  1808,  and  Virginia  and  Delaware  voted  "nay," 
or  for  its  immediate  discontinuance.  No  sooner  had  the 
Constitution  been  adopted,  however,  than  the  annexation 
of  Louisiana  became  a  necessity,  in  order  to  give  an  out 
let  to  the  sea  for  the  produce  of  the  West,  but,  notwith 
standing  the  great  advantage  which  the  annexation  was 
to  confer  upon  Massachusetts,  she  oppoeed  it  to  the  point 
of  threatening  to  dissolve  the  Union  if  it  was  carried 
out.  That,  after  the  great  rebellion  of  Shay  within  her 
borders,  was  the  first  disunion  threat,  and  the  motive  was 
fear  of  the  political  increase  of  Southern  strepgth.  Those 
fears  were  like  all  party  pretences,  short-sighted,  since 
that  territory  has  given  more  Free  than  Slaves  States  to 
the  Union.  This  threat  of  disunion  was  made  while  yet 
Massachusetts  was  engaged  in  the  slave-trade,  that  the 
State  had  voted  to  prolong  to  1808.  The  same  cry  was 
renewed  in  respect  of  Florida,  and  again,  with  greater 
violence,  in  the  case  of  Missouri;  to  be  again  revived  in 
respect  of  Texas;  and  once  more,  with  circumstances  of 
greater  atrocity  in  the  case  of  Kansas.  It  is  remarkable 
that  while  Free  States  come  in  without  any  great  strug 
gle  on  the  part  of  the  South,  the  safety  of  which  is 
threatened  by  each  such  accession,  the  admission  of  Slave 
States  is  the  signal  of  so  much  strife,  and  this  resistance 
to  a  manifest  right  of  the  South  is  denounced  as  "South 
ern  aggression." 

The  gradual  abolition  of  slavery  in  the  old  Northern 


IS    DAVIS   A   TRAITOR?  237 

States,  and  the  rapidity  with  which  Eastern  capital,  fol 
lowing  migration,  .has  settled  the  Western  States,  has 
given  a  large  preponderance  to  the  free  interest  in  the 
national  councils.  Of  the  26  senators  that  sat  in  the  first 
Congress,  all  represented  a  slave  interest,  more  or  less ; 
with  the  States  and  territories  now  knocking  for  admis 
sion,  there  are  72  senators,  of  whom  32  only  represent 
the  slave  interest.  That  interest,  from  being  "a  unit"  in 
the  Senate,  has  sunk  to  a  minority  of  four,  and  yet  the 
majority  do  not  cease  to  complain  of  Southern  "aggres 
sion."  With  this  rapid  decline  in  the  Southern  vote  in 
the  great  " conservative  body"  of  the  Senate,  the  repre 
sentation  in  the  lower  House  has  fallen  to  one-third.  How 
long  will  it  be  before  the  desired  three-fourths  vote,  for 
which  &  large  party  pant,  will  have  been  obtained,  and, 
when  obtained,  what  will  have  become  of  those  Southern 
rights  which  are  even  now  denied  by  party  leaders  to  be 
any  rights  at  all.  In  the  last  30  years  11  Free  States 
have  been  prepared  for  the  Union ;  a  similar  progress  in 
the  next  30  years  and  the  South  will  have  fallen  into  that 
constitutional  minority  which  may  deprive  it  of  all  re 
served  rights.  This  circle  is  closing  rapidly  in  upon  it, 
amid  a  continually  rising  cry  of  abolition,  pointed  by 
bloody  inroads  of  armed  men.  This  is  called  Southern 
"aggression."* 

The  balance  of  power  was  overthrown^  The  South 
lost,  more  and  more,  her  original  equality  in  the  Union ; 
and  the  just  design  of  the  fathers  was  despised  and 
trampled  under  foot  by  the  Northern  Demos.  Every  cen 
sus  showed,  that  her  power  had  diminished,  as  her  dangers 
had  increased;  and  she  no  longer  found  herself  in  the  ori 
ginal  Union  of  equal  sections.  On  the  contrary,  she  found 
herself  in  a  minority,  which  the  Southern  men  of  1787 
would  have  shunned  as  the  plague ;  and  threatened  by  a  vast 
majority  as  cruel  as  death,  and  as  inexorable  as  the  grave. 

*  Southern  Wealth  and  Northern  Profits,  p.  139-40. 


238  IS   DAVIS   A   TRAITOR? 

Thjs  was  not  the  Union  of  the  fathers;  but  the  warped, 
and  perverted  Union  of  unjust  rule  and  domination.  The 
States  of  New  England,  never  failed  to  threaten  a  dissolu 
tion  of  the  Union,  whenever,  in  their  jealous  imaginations, 
there  seemed  even  a  prospect  that  the  balance  of  power 
might  turn  in  favor  of  the  South  in  only  one  branch  of 
Congress.  Yet  the  more  this  balance  was  actually  turned 
in  their  own  favor,  and  the  South,  contrary  to  the  design 
of  the  fathers,  reduced  to  a  hopeless  minority,  the  more 
imperiously  they  demanded  her  implicit  submission  to 
Northern  rule,  and  the  more  fiercely  was  denounced  her 
every  struggle  to  maintain  her  original  equality  and  inde 
pendence  as  "  Southern  aggression." 

From  a  table  in  the  work  above  quoted,  it  appears  that, 
at  each  succeeding  census,  the  relative  increase  of  ihe  two 
sections  in  the  House  of  [Representatives  was  as  follows  : 

Before  Census.  1790.       1800.       1810.         1820.        1830.         1840.       1850. 

North,      35  57        77        104        133        141        135        144 

South,      30  63        65          79          90        100          88          90 

Majority,    5  4        12          25          43          41          47          54 

Thus,  in  one  branch  of  the  Legislature,  the  Northern 
majority,  counting  Delaware  as  a  Southern  State,  had 
increased  from  a  majority  of  five  to  a  majority  of  fifty-four 
representatives.  The  South,  as  every  reader  of  American 
history  must  know,  never  would  have  entered  into  so  une 
qual  a  Union  with  the  North ;  and  the  North  would  not 
have  continued  in  the  Union,  if  she  had  not  always 
retained  the  balance  of  power  in  her  own  hands,  and  in 
both  branches  of  Congress. 

As  the  North  had  so  great  a  majority  in  the  House,  it 
was  the  more  important  that  the  South  should,  at  least, 
retain  her  original  share  of  power  in  the  Senate.  But 
even  this,  she  was  not  allowed  to  do.  In  order  to  gain 
the  complete  and  uncontrolled  ascendency  in  the  Senate, 
as  she  had  done  in  the  House,  the  North  began  to  exclude 


IS   DAVIS   A   TRAITOR?  239 

all  slave-holding  States  from  the  Union.  This  she  at 
tempted  in  regard  to  Missouri,  and  persisted  in  her  uncon 
stitutional  attitude,  until  she  was  defeated  by  the  votes 
of  a  few  Northern  democrats,  who  sacrificed  themselves  to 
save  the  Union  and  their  own  party.  After  the  restora 
tion  of  the  democratic  party,  and  during  its  reign,  the 
rights  of  the  States  were  so  clearly  vindicated,  and  so 
firmly  established,  that  few  ventured  to  claim  for  Congress 
the  power  to  exclude  a  State  from  the  Union,  because  she 
held  slaves.  Hence  the  Republican  party  changed  its 
tactics;  and  endeavored  to  effect  the  same  unconstitutional 
design  in  another  way.  Not  daring  to  say,  as  their  pre 
decessor  had  done,  that  Congress  could  exclude  a  slave- 
holding  State  from  the  Union,  they  determined  that  no 
more  such  States  should  be  formed.  For  this  purpose, 
they  resolved  to  exclude  the  South  from  all  the  territories 
of  the  Union;  so  that  no  addition  should  ever  be  made  to 
her  power,  while  that  of  the  North  was  allowed  to  increase 
with  still  greater  rapidity.  The  North  resolved,  in  fact, 
that  every  new  State  formed,  and  admitted  into  the 
Union,  should  be  an  accession  to  her  own  overgrown 
power.  The  South  might  object  and  complain  ;  but  what 
could  she  do?  Was  she  not  already  in  a  helpless  minority? 
If  we  count  Delaware  as  a  Southern  State,  then  the 
North,  instead  of  a  majority  one  State  in  the  Senate,  had  a 
majority  of  three  States,  or  of  six  votes,  before  the  first 
Southern  State  seceded  from  the  Union.  There  were  eigh 
teen  Northern,  and  only  fifteen  Southern  States,  represented 
in  that  branch  of  Congress;  which  was  designed  to  act 
as  a  check  on  the  majority  in  the  House  of  Representa 
tives.  Nor  was  this  all.  For  there  were,  at  that  time, 
nearly  ready  to  come  into  the  Union — Kansas,  Minnesota, 
Oregon,  Washington,  Nebraska,  Utah,  and  New  Mexico, 
which  would  have  made  the  Northern  majority  as  over 
whelming  in  that  body,  as  it  was  in  the  other  branch  of 
the  Federal  X/egislature.  If  the  tables  had  been  turned, 


240  IS    DAVIS   A   TRAITOR? 

if  the  picture  had  been  reversed,  the  North  would  have 
laughed  such  a  Union  to  scorn.  She  could  not  even  tol 
erate,  indeed,  the  bare  thought,  or  imagination,  that  the 
South  might  gain  the  ascendency  in  the  Senate,  in  only 
one  branch  of  the  Federal  Legislature. 

Thus,  while  the  greedy  North  continued  to  grow  in 
power,  and  in  a  determination  to  crush  the  South  beneath 
her  feet,  she  filled  the  earth  with  her  clamors  about  "the 
aggressions  of  the  slave  power;"  appealing  to  the  preju 
dices  and  passions  of  mankind  in  her  unholy  crusade 
against  an  unknown  and  despised  people.  The  South 
simply  stood  on  the  defensive.  The  one  struggled  for 
empire,  for  dominion;^ the  other  for  independence,  for 
existence.  The  one  struggled  to  preserve  her  original 
equality  in  the  Union;  the  other  to  destroy  that  equality. 
The  one  directed  all  its  efforts  to  uphold  the  balance  of 
power,  established  by  the  authors  of  the  Constitution, 
and  deemed  by  them  the  only  safeguard  of  freedom  in 
the  Union ;  the  other  bent  all  its  energies  to  break  that 
balance,  and  grind  its  fragments  to  powder. 

Hence  the  South  became  extremely  sensible  of  the  dan 
gers  of  her  position  in  the  Union.  All  hope  of  a  "consti 
tutional  power  of  defence"  therein,  had  been  wrested 
from  her  grasp.  That  safeguard  of  her  freedom  and  inde 
pendence,  which  the  founders  of  the  Republic  deemed  so 
essential  to  both  ends  of  the  Union,  no  longer  existed  for 
the  South;  and  she  held  her  rights  and  interests  at  the 
mercy  of  the  North,  as  it  was  never  intended  she  should 
hold  them.  She  could  see,  therefore,  as  clearly  as  Profes 
sor  Cairnes,  that  the  extinction  of  her  freedom  and  inde 
pendence  was,  sooner  or  later,  her  inevitable  destiny  in  the 
Union.  That  dark  destiny,  however,  she  beheld  with  far 
other  eyes  than  those  with  which  it  was  contemplated  by 
the  Professor  of  Jurisprudence.  Beholding,  with  fanatical 
delight,  the  ultimate  ruin  of  the  South  in  tho  Union,  he 
denounced  secession  as  treason  and  rebellion ;  but  it  is  to 


IS   DAVIS   A    TRAITOR?  241 

be  hoped  that,  in  the  estimation  of  mankind,  it  will  not  be 
deemed  an  unpardonable  offence,  if  she  was  not  entirely 
devoid  of  the  natural  instinct  of  self-preservation. 

Jefferson  Davis,  in  the  name  of  the  South,  gave  utter 
ance  to  this  natural  instinct  in  the  Senate  of  tho  United 
States  in  1850.  "The  danger,"  said  he,  "is  one  of  our  own 
times,  and  it  is  that  sectional  division  of  the  people  which 
has  created  the  necessity  of  looking  to  the  question  of  the 
balance  of  power,  and  which  carries  with  it,  when  dis 
turbed,  the  danger  of  disunion."  Such  was  the  treason  of 
Jefferson  Davis  in  1850 !  But  far  bolder  language  had  been 
used  by  Northern  Statesmen,  and  by  Northern  Legisla 
tures,  in  behalf  of  the  North ;  not  because  the  North  was 
in  a  present  or  real,  but  only  because  she  was  in  a  future 
and  purely  imaginary,  minority.  The  treason  of  the  weak 
is  the  patriotism  of  the  strong. 

The  Relative  Decline  of  the  South  in  the  new  Union. 

It  is  a  remarkable  fact,  that  from  the  first  settlement  of 
the  country,  the  South  continued  to  increase  in  population 
and  wealth  more  rapidly  than  the  North,  till  the  new 
Union  was  established.  In  the  Convention  of  1787,  it  was, 
on  all  sides,  conceded  that  the  South  surpassed  the  North 
both  in  population  and  in  wealth.  But  from  that  event, 
from  the  inauguration  of  the  "more  perfect  Union,"  her 
relative  decline  began.  This  fact  has  always  been  ascribed, 
by  the  enemies  of  the  South,  to  the  malign  influence  of  the 
institution  of  slavery.  But  slavery  existed  before  the  new 
Union  without  producing  any  such  effect.  Hence,  how 
ever  great  the  evil  influence  of  slavery  may  have  been,  it 
was  not  sufficient  to  counteract  the  great  natural  advan 
tages  of  the  South,  until  the  new  Union  came  to  its  aid. 
The  action  of  the  Federal  Government  was,  in  the  opinion 
of  many  impartial  judges,  the  great  cause  of  this  relative 
decline  of  the  South,  in  spite  of  the  resources  which  nature, 
12 


242  IS   DAVIS    A    TRAITOR? 

with  a  large  and  liberal  hand,  had  lavished  on  her  teeming 
soil  and  beneficent  climate. 

The  influence  of  this  cause  is  well  explained  by  a  devoted 
friend  to  the  Union.  Eice  and  indigo  were,  says  he,  the 
great  staples  which,  under  the  protection  of  the  British 
Crown,  had  been  the  sources  of  the  superior  wealth  of  the 
South  before  the  Eevolution.  But  under  the  protection, 
or  rather  under  the  contemptuous  neglect,  of  the  Federal 
Government,  these  great  interests  languished,  and  these 
great  staples  were  finally  crushed  out  of  the  markets*  of 
the  world  by  the  hostile  legislation  of  foreign  powers. 
The  decline  of  the  South  would  have  been  as  hopeless  as 
it  was  rapid,  if  the  cultivation  of  cotton,  in  consequence 
of  several  well  known  improvements  and  inventions,  had 
not  become  sufficiently  remunerative  to  stand  alone  with 
out  the  aid  or  support  of  the  Federal  Government.  This 
great  staple  and  source  of  wealth  caused  the  South  to 
revive.  It  not  only  arrested  the  sort  of  "galloping  con 
sumption"  under  which  she  was  fast  sinking  into  compar 
ative  insignificance,  but  it  also  restored  her  to  something 
of  the  fulness  and  the  glow  of  her  former  prosperity.  But 
the  North  fixed  her  eagle  eye  on  the  rising  prosperity  of 
the  South,  and  soon  planted  the  talons  of  her  tariffs  deep 
in  its  very  vitals. 

"The  tariff  question,"  says  Mr.  Ludlow,  "may  be  easily 
disposed  of/'*  He  certainly  disposes  of  it  with  very  great 
ease.  A  few  prudently  selected,  and  carefully  trimmed, 
extracts  from  Mr.  Benton,  are  among  the  facile  means  he 
employs  for  the  purpose.  Let  us,  then,  hear  Mr.  Benton 
himself,  not  in  garbled  extracts  merely,  but  in  the  full 
round  utterance  of  great  historic  truths.  Mr.  B.  was  no 
friend  to  the  institution  of  slavery,  or  to  its  extension.  In 
regard  to  this  last  most  exciting  question,  he  was  decidedly 
with  the  North.  But  yet,  unlike  Mr.  L.  and  his  school, 
Mr.  Benton  could  both  see  and  feel  that  something  else 
*  History,  p.  305. 


IS    DAVIS    A    TRAITOR?  243 

beside  slavery  exerted  an  evil  influence  in  the  United 
States  of  America.  Accordingly,  in  1828,  he  uttered  the 
following  words  in  the  Senate :  "I  feel  for  the  sad  changes 
which  have  taken  place  in  the  South  during  the  last  fifty 
years.  Before  the  Revolution,  it  was  the  seat  of  wealth 
as  well  as  of  hospitality.  Money  and  all  it  commanded 
abounded  there.  But  how  now  ?  all  this  is  reversed. 
"Wealth  has  fled  from  the  South  and  settled  in  the  regions 
North  of  the  Potomac ;  and  this  in  the  face  of  the  fact  that 
the  South  in  four  staples  alone  has  exported  produce  since 
the  Revolution,  to  the  value  of  eight  hundred  millions  of 
dollars;  and  the  North  has  exported  comparatively  noth 
ing.  Such  an  export  would  indicate  unparalleled  wealth, 
but  what  is  the  fact?  In  the  place  of  wealth  a  universal 
pressure  for  money  was  felt — not  enough  for  current 
expenses — the  price  of  all  property  down — the  country 
drooping  and  languishing — towns  and  cities  decaying — 
and  the  frugal  habits  of  the  people  pushed  to  the  verge  of 
universal  self-denial  for  the  preservation  of  their  family 
estates.  Such  a  result  is  a  strange  and  wonderful  phe 
nomenon.  It  calls  upon  statesmen  to  enquire  into  the 
cause."  How  did  slavery  produce  this  wonderful  transform 
ation  ?  How  did  slavery  work  all  this  ruin  ?  Slavery,  it 
is  well  known,  existed  before  the  Revolution  as  well  as 
afterward;  and  accompanied  the  South  in  the  palmiest 
days  of  her  prosperity,  as  well  as  in  the  darkest  and  most 
dismal  hour  of  her  adversity.  Hence  it  was  not,  and 
could  not  have  been,  the  one  cause  of  so  great  and  so  sud 
den  a  change.  And  besides,  instead  of  having  ceased  to 
produce,  the  fair  and  fruitful  South  continued  to  pour 
forth,  in  greater  abundance  than  ever,  the  broad  streams 
of  national  prosperity  and  wealth.  Hence  she  was  im 
poverished,  not  because  the  fountains  of  her  former  supply 
had  been  dried  up,  or  even  diminished  in  volume,  but 
because  the  great  streams  flowing  from  them  did  not 
return  into  her  own  bosom.  Into  what  region  of  the 
earth,  then,  did  these  streams  empty  themselves? 


244  IS   DAVIS    A   TRAITOR? 

Mr.  Benton  answers  this  question;  and  though  his  an 
swer  is  diametrically  opposed  to  the  views  of  the  Bright 
and  Cobden  school,  he  is  the  great  authority  whom  Mr. 
Ludlow  himself  has  brought  upon  the  stand.  Under 
"Federal  legislation,"  says  Mr.  Benton,  "the  exports  of 

the  South  have  been  the  basis  of  the  Federal  revenue 

Virginia^  the  two  Carolinas,  and  Georgia,  may  be  said  to  de 
fray  three-fourths  of  the  annual  expense  of  supporting  the 
Federal  Government;  and  of  this  great  sum  annually  fur 
nished  by  them,  nothing  or  next  to  nothing  is  returned  to 
them  in  the  shape  of  Government  expenditures.  That 
expenditure  flows  in  an  opposite  direction — it  flows  north 
wardly  in  one  uniform,  uninterrupted,  and  perennial 
stream.  This  is  the  reason  why  wealth  disappears  from  the 
South  and  rises  up  in  the  North.  Federal  legislation  does  all 
this.  It  does  it  by  the  simple  process  of  eternally  taking 
from  the  South  and  returning  nothing  to  it.  If  it  return 
ed  to  the  South  the  whole  or  even  a  good  part  of  what  it 
exacted,  the  four  States  south  of  the  Potomac  might  stand 
the  action  of  the  system,  but  the  South  must  be  exhaust 
ed  of  its  money  and  property  by  a  course  of  legislation 
which  is  forever  taking  away  and  never  returning  any 
thing.  Every  new  tariff  increases  the  force  of  this  action. 
No  tariff  has  ever  yet  included  Virginia,  the  two  Carolinas, 
and  Georgia,  except  to  increase  the  burdens  imposed  upon 
them." 

Nor  was  Mr.  Benton  alone  in  this  opinion.  The  politi 
cal  economists  of  the  North,  such  as  Carey,  Elliot,  Ket- 
tell,  and  others,  who  had  studied  the  sources  of  national 
wealth  in  America,  gave  precisely  the  same  explanation 
of  the  sudden  and  wonderful  disappearance  of  wealth  from 
the  South.  The  North  might  easily  satisfy  its  owTn  con 
science,  by  making  slavery  the  scape-goat  for  its  sins;  but 
thinking  men,  even  at  the  North,  were  not  so  readily 
deceived.  Hence,  in  an  able  work  entitled  "Southern 
Wealth  and  Northern  Profits,"  the  author  does  not  hesi- 


IS    DAVIS    A   TRAITOR?  245 

tate  to  tell  the  people  of  his  own  section,  that  it  was  gross 
injustice,  if  not  hypocrisy,  to  be  always  growing  rich  on 
the  profits  of  slave-labor;  and,  at  the  same  time,  to  be 
eternally  taunting  and  insulting  the  South  on  account  of 
slavery.  Though  it  Was  bitterly  denounced  as  "  the  sum  of 
all  villainies;"  it  was,  nevertheless,  the  principal  factor  in 
Northern  wealth. 

In  like  manner,  Professor  Elliot,  though  a  Northern 
man,  and  an  enemy  to  slavery;  yet,  as  a  political  econo 
mist,  and  teacher  of  the  science  in  a  Northern  college,  he 
denied  that  it  had  impoverished  the  South.  On  the  con 
trary,  he  has,  in  a  work  styled  "Cotton  is  King,"  shown 
that  slave-labor  has  been  one  of  the  great  sources  of 
Northern  wealth.  Is  it  any  wonder,  then,  that  the  think 
ing  men  of  the  South  should  have  entertained  the  same 
opinion?  Is  it  any  wonder,  that  they  should  have  agreed 
with  Benton,  and  Kettell,  and  Elliot,  and  other  Northern 
writers,  that  it  was  legislation,  and  not  slavery,  which  had 
impoverished  the  South?  It  is  certain,  that  such  was  the 
conclusion  of  the  thinking  men  of  the  South,  in  view  of 
her  sad  and  frightfully  altered  condition. 

"Such  a  result,"  says  Mr.  Benton,  "is  a  strange  and 
wonderful  phenomenon.  It  calls  upon  statesmen  to  enquire 
into  the  cause;  and  if  they  enquire  upon  the  theatre  of  this 
strange  metamorphosis  they  will  receive  one  universal 
answer  from  all  ranks  and  ages,  that  it  is  Federal  legislation 
which  has  worked  this  ruin"  If,  under  such  circumstances 
or  belief,  the  South  had  been  satisfied  with  the  action  of 
the  Federal  Government,  her  people  must  have  been  the 
greatest  of  all  simpletons,  or  the  most  patient  of  all  saints. 
They  were  neither;  they  were  merely  human  beings,  who 
had  some  little  regard  for  their  own  interests,  as  well  as 
for  those  of  their  neighbors.  Hence,  the  tariffs  of  the 
United  States,  by  which  one  portion  of  the  people  was 
impoverished  for  the  benefit  of  another  portion  of  the  peo 
ple,  left  in  the  minds  of  the  most  influential  men  of  the 


246  IS    DAVIS    A    TRAITOR? 

South  a  deep  and  abiding  sense  of  the  injustice  of  North 
ern  legislation. 

What  less  could  have  been  anticipated?  All  majorities 
are,  in  fact,  unjust,  despotic  and  oppressive.  Hence,  in 
the  opinion  of  the  Convention  of  1787,  if  either  section 
should  have  the  majority  in  both  branches  of  Congress,  it 
would  oppress  the  other.  As  this  opinion  was  founded  on 
the  experience  of  the  past,  so  it  was  afterward  confirmed 
by  the  history  of  the  future.  Indeed,  if  the  North,  with 
a  majority  in  both  branches  of  Congress,  had  not  op 
pressed  the  South,  it  would  have  been  unlike  every  other 
unchecked  power  in  the  history  of  the  world. 

There  have  been,  no  doubt,  lets,  hindrances,  and  pauses 
in  this  onward  march  of  the  triumphant  power  of  the 
North.  But  it  has  always  had  its  eye  fixed  on  one  object 
of  supreme  desire,  namely,  on  absolute  dominion  and 
control.  It  had  already  become  absolutely  overwhelming 
in  one  branch  of  Congress,  with  the  certainty  of  soon  be 
coming  equally  overwhelming  in  the  other.  There  was 
not  a  member  of  the  Convention  of  1787,  who,  if  his  own 
section  had  been  in  the  minority,  would  not  have  shrunk 
from  such  a  Union  with  horror.  He  must  indeed  have 
been  profoundly  ignorant  of  the  sentiments  of  the  fathers, 
as  well  as  of  the  character  of  all  interested  majorities,  who 
could  have  supposed,  for  a  moment,  that  the  South  might 
have  been  free,  or  safe,  or  happy  in  such  a  Union.  What! 
is  that  freedom  which  is  held  at  the  mercy  of  another? 
Is  that  safety  which  depends  on  the  will  of  an  inter 
ested  majority? 

What  was  to  have  been  expected  from  such  a  majority, 
is  well  described  in  the  speeches  of  John  C.  Calhoun;  in  the 
"Essay  on  Liberty"  by  John  Stuart  Mill;  and  in  the  cel 
ebrated  work  of  De  Tocqueville  on  "Democracy  in  Amer 
ica."  Both  De  Tocqueville  and  Mill  are  advocates  of  democ 
racy  ;  and  yet,  if  possible,  they  draw  more  frightful  pic 
tures  of  the  tyram.y  of  an  unchecked  majority,  than  has 


IS    DAVIS    A    TRAITOR?  247 

John  C.  Calhoun  himself.  "  The  majority  in  that  country," 
[the  United  States,]  says  M.  De  Tocqueville,  "exercise  a 
prodigious  actual  authority,  and  a  moral  influence  which 
is  scarcely  less  preponderant;  no  obstacles  exist  which  can 
impede,  or  so  much  as  retard  its  progress,  or  which  can 
induce  it  to  heed  the  complaints  of  those  whom  it  crushes 
upon  its  path."  *  How  cold,  then,  and  heartless,  such  a 
majority!  Cruel  as  death,  and  inexorable  as  the  grave,  it 
turns  a  deaf  ear  to  the  outcries  of  those  whom  it  crushes 
upon  its  path ! 

But  if  such  was  the  unprejudiced  conclusion  of  a  great 
philosphic  observer  in  1833,  what  was  to  have  been  ex 
pected  from  a  sectional  majority,  growing  continually  in 
greatness,  in  power,  and  in  hatred  of  the  sectional  minori 
ty  ?  Had  the  South  no  reason  for  her  fears?  If  not,  then 
De  Tocqueville,  and  Mill,  and  Calhoun,  were  the  veriest 
simpletons  that  ever  lived.  If  not,  then  the  founders  of 
the  Republic  had  all  read  the  history  of  their  own  times 
wrong,  and  wrote  libels  on  the  character  of  unshackled 
majorities? 

M.  De  Tocqueville  has  told  the  exact  truth.  "This 
state  of  things,"  said  he,  in  1833,  "  is  fatal  in  itself,  and 

dangerous  for  the  future If  the  free  institutions 

of  America  are  ever  destroyed,  that  event  may  be  attrib 
uted  to  the  unlimited  authority  of  the  majority 

Anarchy  will  then  be  the  result,  but  it  will  have  been 
brought  about  by  despotism."  f 

The  Formation  of  a  Faction. 

There  is  a  vast  difference  between  a  political  party  and 
a  faction.  The  one  is  legitimate,  healthful,  and  conserva 
tive;  the  other  is  the  fatal  disease  of  which  nearly  all 
republics  have  perished.  The  one  is  united  by  principles, 
or  designs,  which  persons  in  any  part  of  the  Republic  may 
freely  adopt  and  cherish;  the  other  is  animated  by  a 
*Democracy  in  America,  Vol.  i,  p.  301.  flbid,  p.  317. 


248  IS    DAVIS    A    TRAITOR? 

"common  interest,  or  passion,"  which  is  hostile  to  other 
interests  of  the  same  community.  Now,  the  great  object 
of  the  legislation  of  1787,  was  to  provide  a  remedy  for  the 
fatal  effects  of  faction. 

"  Among  the  numerous  advantages,"  says  The  Federal 
ist,  "promised  by  a  well  constructed  union,  none  deserves 
to  be  more  accurately  developed  than  its  tendency  to 
break  and  control  the  violence  of  faction.  The  friend  of 
popular  governments,  never  finds  himself  so  much  alarmed 
for  their  character  and  fate,  as  when  he  contemplates 
their  propensity  to  this  dangerous  vice.  He  will  not  fail, 
therefore,  to  set  a  due  value  on  any  plan  which,  without 
violating  the  principles  to  which  he  is  attached,  provides 
a  proper  cure  for  it."*  Mr.  Madison,  the  author  of  the 
above  words,  used  still  more  impressive  language  on  the 
same  subject,  in  the  Virginia  Convention  of  1788.  "On  a 
candid  examination  of  history,"  he  there  said,  "we  shall 
find  that  turbulence,  violence,  and  abuse  of  power,  by  the 
majority  trampling  on  the  rights  of  the  minority,  have  produced 
factions  and  commotions,  which,  in  republics,  have  more  fre 
quently  than  any  other  cause,  produced  despotism.  If  we  go 
over  the  whole  history  of  ancient  and  modern  republics,  we  shall 
find  their  destruction  to  have  generally  resulted  from  those 
causes.  IF  WE  CONSIDER  THE  PECULIAR  SITUATION  OF  THE 
UNITED  STATES,  AND  WHAT  ARE  THE  SOURCES  OF  THAT 
DIVERSITY  OF  SENTIMENT  WHICH  PERVADES  ITS  INHABI 
TANTS,  WE  SHALL  FIND  GREATER  DANGER  TO  FEAR,  THAT  THE 
SAME  CAUSES  MAY  TERMINATE  HERE,  IN  THE  SAME  FATAL 
EFFECTS,  WHICH  THEY  PRODUCED  IN  THOSE  EEPUBLICS."f 
Here,  then,  was  the  rock  on  which  the  new  Republic 
was  in  the  greatest  danger  of  being  dashed  to  pieces. 
Hence,  Mr  Madison  well  adds:  "This  danger  ought  to 
be  wisely  guarded  against."  Otherwise,  the  great  Eepub 
lic  must  inevitably  split  on  the  rock  of  faction,  and  go  to 
the  bottom,  with  the  republics  of  the  past. 
~  *No.  x.  T Elliot' s  Debates,  vol.  iii,  p.  109. 


IS    DAVIS    A    TRAITOR?  249 

It  was,  therefore,  the  great  object  of  the  legislation  of 
1787,  to  guard  the  new  Republic  against  the  rise,  or  form 
ation,  of  a  faction.  This,  as  we  have  already  seen,  is  well 
stated  in  The  Federalist,  as  follows:  "When  a  majority  ia 
included  in  a  faction,  the  form  of  popular  government,  en 
ables  it  to  sacrifice  to  its  ruling  passion,  or  interest,  both  the 
public  good  and  the  rights  of  other  citizens.  To  secure  the 
public  good,  and  private  rights,  against  the  danger  of  such  a 
faction,  and  at  the  same  time  to  preserve  the  spirit  and  the 
form  of  a  popular  government,  is  the  great  object  to  which  our 
inquiries  are  directed.  Let  me  add,  that  it  is  the  great  desid 
eratum,  by  which  alone  this  form  of  government  can  be  rescued 
from  the  opprobrium  under  which  it  has  so  long  labored,  and  be 
recommended  to  the  esteem  and  adoption  of  mankind."  * 

By  what  means,  then,  did  the  legislators  of  1787,  hope 
to  remedy  the  evils  of  faction ;  to  subdue,  if  not  to  eradi 
cate,  that  fatal  disease  of  republics?  Mr.  Madison  replies: 
"Perhaps,  in  the  progress  of  this  discussion,  it  will  appear 
that  the  only  possible  remedy  for  those  evils  and  means  of 
protecting  the  principles  of  Republicanism,  will  be  found 
in  that  very  system  which  is  now  exclaimed  against  as  the 
parent  of  despotism. "f  That  is,  in  the  new  Union  of  1787. 

Now  where,  and  how,  did  the  new  Union  provide  "the 
only  possible  remedy  "  against  the  evils  of  faction  ?  Ac 
cording  to  the  view  of  Mr.  Madison,  and  of  the  majority 
of  the  Convention  of  '87,  neither  the  North  nor  the  South 
would  be  able  to  form  itself  into  a  dangerous  faction; 
because,  as  they  said,  each  section  will  have  a  majority  in 
one  branch  of  Congress  ;  and  thereby  hold  a  constitutional 
check  on  the  power  of  the  other.  But  this  remedy,  as 
every  one  knows,  proved  a  total  failure. 

The  other  great  remedy  against  the  evils  of  faction, 
which,  as  the  legislators  of  1787  supposed,  existed  in  the 
new  system;  would  be  found  in  the  great  extent  of  the 
Union,  in  the  great  number  and  diversity  of  its  interests, 
*No.  x.      fElliof  s  Debates,  Vol.  Hi,  p.  109. 
12* 


250  IS    DAVIS    A    TRAITOR? 

which  would  prevent  "anyone  party  being  able  to  out 
number  and  oppress  the  rest."*  This  remedy  against  fac 
tion  is  repeatedly  urged  by  Mr.  Madison.  Thus,  he  speaks 
of  the  new  Union  "as  the  proper  antidote  for  the  diseases 
of  faction,  which  have  proved  fatal  to  other  popular  gov 
ernments,  and  of  which  alarming  symptoms  have  been 
betrayed  by  our  own;"-)"  because  "the  influence  of  fac 
tious  leaders,"  who  "may  kindle  a  flame  within  their  par 
ticular  States," "will  be  unable  to  spread  a  great  confla 
gration  through  the  other  States."  J  Now  this  great 
remedy  also  proved  a  failure.  Factious  leaders  did  kindle 
a  conflagration  through  all  the  Northern  States;  and  the 
great  North,  animated  by  one  "passion,  or  interest,"  did 
form  itself  into  the  most  terrible  faction  the  world  has 
ever  seen,  and  point  all  the  lightnings  of  its  wrath  at  the 
devoted  South. 

The  fact  is  not  denied  by  many  of  the  great  champions 
of  the  Northern  power.  On  the  contrary,  it  was  made  a 
ground  of  exultation  and  boasting,  by  some  of  her  most 
eloquent  orators.  Thus,  it  was  said  "no  man  has  a  right 
to  be  surprised  at  this  state  of  things.  It  is  just  what  we 
have  attempted  to  bring  about.  It  is  the  first  sectional 
party  ever  organized,  in  this  country.  It  does  not  know  its  own 
face,  and  calls  itself  national;  but  it  is  not  national — it  is  sec 
tional.  THE  EEPUBLICAN  PARTY  is  A  PARTY -OF  THE  NORTH 
PLEDGED  AGAINST  THE  SouTii."§  Nothing  could  have  been 
more  true.  Thus,  under  and  in  spite  of  the  Constitution  de 
signed  for  the  protection  of  all  sections  and  of  all  interests 
alike,  the  North  did  form  itself  into  a  faction,  and  seize  all 
the  powers  of  the  Federal  Government.  This  may  have 
been  rare  sport  to  the  leaders  of  the  faction;  it  was  the 
death-knell  of  the  Republic.  It  was, — the  founders  of 
the  Union  themselves  being  the  judges, — the  fall  of  the 
Republic,  and  the  rise  of  a  despotism. 

*  The  Federalist,  Nc.  xiv.        flbid.          Jlbid,  No.  x. 
^Wendell  Phillips. 


IS   DAVIS    A    TRAITOR?  251 

This  faction,  it  is  said,  did  "not  know  its  own  face." 
Perhaps  it  was  a  little  ashamed  of  its  own  face.  It  is  cer 
tain,  that  it  was  very  loud  in  its  professions  that  all  its 
designs  were  national  and  constitutional;  even  while  it 
avowed  the  purpose  to  "  use  all  constitutional  means  to 
put  an  end  to  the  institution  of  slavery."  But  no  sueji 
means  were  known  to  the  Constitution;  which,  as  the 
leaders  of  that  faction  perfectly  well  knew,  was  estab 
lished  and  ordained  to  protect  all  the  institutions  of  the 
South,  as  well  as  of  the  North.  Use  all  constitutional 
means  indeed !  Why,  the  very  existence  of  such  a  faction, 
was  an  outrageous  violation  of  the  whole  spirit  and  design 
of  the  Constitution  of  1787.  It  was,  in  one  word,  the  last 
throe  of  the  mighty  Eepublic,  as  it  succumbed  to  the  fatal 
disease  of  which  so  many  republics  had  previously  per 
ished.  Conceived  in  profound  contempt  of  the  wisdom  of 
Washington,  who,  in  his  Farewell  Address,  had  so  sol 
emnly  warned  his  countrymen  against  the  dangers  of  a 
sectional  party,  or  faction;  it  just  marched  right  onward 
in  the  light  of  its  own  eyes  over  broken  constitutions,  and 
laws,  and  oaths;  trampling  on  aH  alike  with  imperial 
scorn  and  proud  disdain. 

The  South  was  advised  to  "wait  for  some  overt  act." 
But  if  one  finds  himself  in  company  with  a  strong  man 
armed,  who  is  both  able  and  willing  to  crush  him,  is  it 
wise  to  "wait  for  the  overt  act,"  or  to  withdraw  from  his 
society  as  soon  as  possible?  If  the  strong  man  armed 
should  make  his  withdrawal  the  occasion  of  his  ruin; 
that  would  only  prove,  that  the  companionship  was  nei 
ther  safe,  nor  desirable. 

The  South,  it  is  true,  did  not  better  her  condition  by 
her  withdrawal  from  the  North.  But  is  not  all  history 
replete  with  similar  instances  of  failure  in  the  grand 
struggle  for  freedom,  safety,  and  independence?  In  the 
golden  words  of  The  Federalist:  "Justice  is  the  end  of 
government.  It  is  the  end  of  civil  society.  It  ever  has 


252  IS   DAVIS   A   TRAITOK? 

been,  and  it  ever  will  be  pursued,  until  it  be  obtained,  or 
until  liberty  be  lost  in  the  pursuit,"  *  It  was  thus,  in 
the  pursuit  of  justice,  that  the  South  lost  her  liberty.  If 
she  had  not  engaged  in  the  pursuit,  she  would  have  de 
served  to  lose  her  liberty. 

The  South,  it  was  said,  had  nearly  always  been  in  the 
possession  of  the  Government;  and  it  was  right,  there 
fore,  that  the  North  should  take  possession  of  it  in  her 
turn.  But  this  is  one  of  the  lying  fictions  of  the  North. 
The  South  never  had  possession  of  the  Government  at 
all.  All  the  great  powers  of  the  Government  are,  for  the 
most  part,  lodged  in  the  Congress  of  the  United  States,  in 
neither  branch  ofwhich  did  the  South  ever  have  a  major 
ity.  She  was,  indeed,  when  she  entered  into  the  new 
Union,  promised  a  majority  in  one  branch  of  Congress; 
but  that  promise,  like  an  apple  of  Sodom,  soon  turned  to 
dust  and  ashes  in  her  hands. 

Nor  had  the  South  as  such  ever  had  a  President  of  the 
United  States.  The  great  democratic  party  generally 
selected  its  Presidents  from  the  South.  But  this  did  not 
make  them  sectional  Presidents.  Neither  AVashington, 
nor  Jefferson,  nor  Madison,  nor  Monroe,  nor  Jackson,  nor 
Polk,  was  a  sectional  President.  On  the  contrary,  so  lit 
tle  was  there  of  a  sectional  nature  in  their  characters,  or 
designs,  that  each  and  every  one  of  them  was  elected  to 
the  Presidency  of  the  United  States,  by  a  large  majority 
of  the  Northern  votes.  Mr.  Lincoln,  on  the  other  hand, 
who  was  a  sectional  candidate,  and  put  forth  on  purely 
sectional  grounds,  did  not  receive  a  single  Southern  vote. 
He  was,  then,  the  candidate  not  of  a  legitimate  party,  but 
of  the  great  unconstitutional  and  anti-republican  faction 
of  1861;  that  is,  the  candidate  of  "the  party  of  the  North 
pledged  against  the  South." 

The  North,  with  a  majority  in  both  houses  of  Congress, 
was  perfectly  protected  against  every  possible  danger  of 
*  No.  li. 


IS   DAVIS  A   TRAITOR?  253 

oppression.  If,  then,  a  statesman  from  the  South  had  al 
ways  filled  the  office  of  President;  still  her  situation 
would  have  been  far  more  precarious  and  unprotected 
than  that  of  the  North.  The  President  could  introduce 
no  bill  into  Congress;  he  could  only  veto  those  which  he 
might  deem  unjust  and  oppressive.  Surely,  a  most  feeble 
and  uncertain  protection  to  the  South;  since  no  man 
stood  the  least  chance  for  the  Presidency,  who  was  not 
known  to  favor  the  wishes  and  the  interests  of  the 
mighty  North.  The  North,  then,  in  possession  of  both 
branches  of  Congress,  and  the  dazzling  prize  of  the  Pres 
idency  to  influence  the  leading  politicians  of  the  South, 
was  sufficiently  secure  in  the  Union ;  even  if  all  the  Pres 
idents  had  come  from  the  South.  But  all  this  did  not  sat 
isfy  the  North.  On  the  false  plea,  that  the  South  had 
nearly  always  been  in  possession  of  the  Government ;  she 
determined  to  take  possession  of  all  its  departments,  the 
supreme  Executive,  as  well  as  both  branches  of  the  Fed 
eral  Legislature.  Nor  is  this  all.  She  determined  to  take 
and  to  keep  possession  of  them  all  in  the  name  of  the 
North,  alleging  that  the  South  had  enjoyed  them  all  long 
enough;  and  to  wield  them  all  by  the  terrible  faction  of 
"the  North  pledged  against  the  South."  Nor  was  this  all. 
The  great  leader,  or  the  great  tool,  of  this  faction,  declar 
ed  that  he  was  not  bound  by  the  decisions  of  the  Supreme 
Court  of  the  United  States;  that  he  would  enforce  the 
Constitution  as  he  understood  it,  and  not  as  it  was  under 
stood  by  that  high  judicial  tribunal.  Indeed,  this  mighty 
faction  was  got  up  and  organized  in  direct  opposition  to,  and 
in  open  contempt  of  the  decisions  of  the  Supreme  Court 
of  the  United  States;  both  in  the  Bred  Scott  case,  and  in 
the  case  of  Prigg  vs.  the  Commonwealth  of  Pennsylvania. 
Its  own  will  was  its  only  law. 

It  arose,  like  some  monstrous  abortion  of  night  and 
darkness,  from  the  bottomless  depths  of  a  factious  con 
tempt  for  all  law  and  all  authority.  The  decision  of  the 


254  IS   DAVIS   A    TRAITOR? 

Supreme  Court  in  the  case  of  Prigg,  which  authorizes 
the  master  to  seize  his  fugitive  slave  without  process  in  any 
State  of  the  Union;  was  the  first  object  of  attack  by  the 
great  leaders  of  this  faction.  The  Court  was  denounced 
as  having  been  corrupted  by  pro-slavery  sentiments; 
though  this  very  opinion  was  delivered  by  a  Northern 
abolitionist;  by  Mr.  Justice  Story  himself.  Mr.  Justice 
Story  could,  as  we  have  seen,  go  great  lengths  in  his  ad 
vocacy  of  the  Northern  cause:  but  yet,  as  a  Judge  of  the 
Supreme  Court  of  the  United  States,  he  could  not  decide 
in  direct  and  open  violation  of  his  oath  of  office.  This 
instance  of  his  integrity,  in  which  other  Northern  Judges 
concurred,  brought  down  the  indignation  and  contempt 
of  the  great  leaders  of  the  Republican  party  upon  the 
Court,  whose  opinion  he  had  delivered.  It  was  then 
threatened  by  those  factious  leaders,  that  the  Supreme 
Court  of  the  United  States  should  be  reorganized,  and 
made  to  conform  to  the  wishes  and  sentiments  of  the 
North;  a  purpose  which  was  sure  of  its  fulfilment  after 
the  election  of  Mr.  Lincoln,  and  which  would  have  capped 
the  climax  ef  the  lawless  designs  of  the  Northern  faction 
"pledged  against  the  South." 

Mr.  Madison,  "the  father  of  the  Constitution,"  believed 
that  such  a  faction  would  never  arise  in  the  newT  Union. 
But  he  never  doubted,  for  a  moment,  that  if  it  should  arise 
therein,  this  wTould  prove  that  the  Federal  Government 
had  failed  to  answer  the  great  end  of  his  creation.  For, 
as  we  have  seen,  it  was,  in  his  own  w^ords,  the  great  object 
of  that  Government,  "to  secure  the  public  good,  and  pri 
vate  rights,  against  the  danger  of  such  a  faction;"  by  pro 
viding  against  the  possibility  of  its  appearance  in  the 
bosom  of  the  Republic.  This  is  the  great  desideratum, 
which,  according  to  the  legislators  of  1787,  is  necessary 
to  remove  "the  opprobrium  under  which  that  form  of  Gov 
ernment  has  so  long  labored,"  arid  "to  recommend  it  to 
the  esteem  and  adoption  of  mankind;"  and  which  they 


IS    DAVIS    A    TRAITOR?  255 

supposed  had  been  supplied  by  their  legislation.  But 
their  remedies  were  too  weak.  Their  practice  was  not  suf 
ficiently  heroic.  Hence  the  fatal  disease  of  republics,  the 
rise  of  faction,  was  not  only  engendered,  but  developed 
into  a  degree  of  frightful  malignity,  which  is  without  a 
parallel  in  the  history  of  the  world.  The  design  was  good ; 
but  the  execution  defective.  The  fathers,  in  one  word, 
did  not  begin  to  foresee  the  weakness,  the  folly,  the  mad 
ness,  and  the  wickedness  of  their  descendants.  Hence, 
their  sublime  attempt  to  "establish  justice,  ensure  domes 
tic  trail quility,  promote  the  general  welfare,  and  secure 
the  blessings  of  liberty  to  their  posterity;"  proved  an 
awful  failure.  Indeed,  if  they  could  only  have  witnessed 
the  gigantic  and  terrific  faction  of  1861,  they  would  have 
pronounced  their  own  "grand  experiment"  a  disastrous 
failure.  It  was  so  regarded  by  the  South;  and,  for  that 
reason,  the  South  wished  to  make  an  experiment  for  herself. 
But,  unfortunately,  she  was  already  in  the  horrible  clutches 
of  a  relentless  and  a  remorseless  faction. 

Factions  have  no  heart,  no  conscience,  no  reason,  no 
consistency,  no  shame.  Would  you  reason  with  such  a 
remorseless  monster?  You  might  just  as  well  read  the  riot 
act  to  a  thunder  storm.  Would  you  appease  its  wrath? 
Would  you  soothe  its  rampant  and  raging  ferocity? 
Would  you  appeal  to  all  the  tender  mercies  of  our  holy 
religion?  You  might  just  as  weU  sing  a  lullaby  to  the 
everlasting  roarings  of  the  Pit.  The  South  did  not  enter 
into  the  "new  Union"  to  be  governed  by  any  such  fac 
tion.  She  entered  into  the  new  Union,  on  the  contrary,  in 
order  to  secure  her  freedom,  her  independence,  her  happi- 
piness,  her  glory;  and  she  lost  them  all — except  her  glory. 

Even  Mr.  Madison,  with  all  his  devotion  to  the  great 
work  of  his  own  hands,  never  became  so  blind  an  idolater 
as  to  resemble  that  epitome  of  meanness  and  climax  of 
servility, —  "an  unconditional  Union-man."  On  the  con 
trary,  still  breathing  the  spirit  of  a  freemen,  he  said :  "  Were 


256  IS    DAVIS    A    TRAITOR? 

the  plan  of  the  Convention  adverse  to  the  public  happi 
ness,  my  voice  would  be,  Reject  the  plan.  Were  the 
Union  itself  inconsistent  with  the  public  happiness,  it 
would  be,  ABOLISH  THE  UNION."  *  Even  as  late  as  1830, 
he  declared,  that  "it  still  remains  to  be  seen  whether  the 
Union  will  answer  the  ends  of  its  existence  or  otherwise." 
If  he  had  lived  till  1861,  he  would  have  seen  that  the 
Union,  having  failed  to  prevent  the  rise  and  reign  of  fac 
tion,  had  not  answered  "the  great  object"  of  its  creation; 
and,  consequently,  no  longer  deserved  to  exist.  Hence, 
in  1861,  he  would  either  have  unveiled  the  right  of  seces 
sion,  or  else  he  would  have  belied  all  the  great  principles, 
and  sentiments,  and  designs  of  his  life. 

Other  Causes  of  Secession. 

The  foregoing  grounds  or  causes  of  secession  are,  it 
seems  to  me,  amply  sufficient  to  justify  the  South  in  the 
exercise  of  a  constitutional  right;  for  which  she  was 
amenable  to  no  tribunal  on  earth,  except  to  the  moral  sen 
timents  of  mankind.  But  there  are  still  other  and  power 
ful  causes  of  secession ;  which  it  is  unnecessary  to  discuss 
in  the  present  work.  All  the  grounds  of  secession,  includ 
ing  those  above  considered,  may  be  stated  as  follows : 

First,  the  destruction  of  the  balance  of  power,  which 
was  originally  established  between  the  North  and  the 
South ;  and  which  was  deemed  by  the  authors  of  the  Con 
stitution  to  be  essential  to  the  freedom,  safety,  and  happi 
ness  of  those  sections  of  the  Union. 

Secondly,  the  sectional  legislation,  by  which  the  original 
poverty  of  the  North  was  exchanged  for  the  wealth  of  the 
South;  contrary  to  the  great  design  of  the  Constitution, 
which  was  to  establish  the  welfare  of  all  sections  alike, 
and  not  the  welfare  of  one  section  at  the  expense  of 
another. 

Thirdly,  the  formation  of  a  faction,  or  "the  party  of  the 

*  The  Federalist,  No.  xlv. 


IS    DAVIS    A    TRAITOR?  257 

North  pledged  against  the  South;"  in  direct  and  open  vio 
lation  of  the  whole  spirit  and  design  of  the  new  Union; 
involving  a  failure  of  the  great  ends  for  which  the  Repub 
lic  was  ordained. 

Fourthly,  the  utter  subversion  and  contemptuous  disre 
gard  of  all  the  checks  of  the  Constitution,  instituted  and 
designed  by  its  authors  for  the  protection  of  the  minority 
against  the  majority;  and  the  lawless  reign  of  the  North 
ern  Demos. 

Fifthly,  the  unjust  treatment  of  the  slavery  question, 
by  which  the  compacts  of  the  Constitution  made  by  the 
North  in  favor  of  the  South,  were  grossly  violated  by  her ; 
while,  at  the  same  time,  she  insisted  on  the  observance  of 
all  the  compacts  made  by  the  South  in  her  own  favor. 

Sixthly,  the  sophistry  and  hypocricy  of  the  North,  by 
which  she  attempted  to  justify  her  injustice  and  oppression 
of  the  South. 

Seventhly,  the  horrible  abuse  and  slander,  heaped  on 
the  South,  by  the  writers  of  the  North;  in  consequence  of 
which  she  became  the  most  despised  people  on  the  face  of 
the  globe;  wvhose  presence  her  proud  ally  felt  to  be  a  con 
tamination  and  a  disgrace. 

Eighthly,  the  contemptuous  denial  of  the  right  of  seces 
sion  ;  the  false  statements,  and  the  false  logic  by  which 
that  right  was  concealed  from  the  people  of  the  North; 
and  the  threats  of  extermination  in  case  the  South  should 
dare  to  exercise  that  right. 

These,  it  is  believed,  are  the  principal  causes  by  which 
the  last  hope  of  freedom  for  the  South  in  the  Union  was 
extinguished;  and,  consequently,  she  determined  to  with 
draw  from  the  Union.  Bravely  and  boldly  did  she  strike 
for  Liberty;  and,  if  she  fell,  it  was  because,  as  the  London 
Times  said,  "she  had  to  fight  the  world." 


CHAPTEE    XX. 

The,  Legislators  of  1787  as  Political  Prophets.  ' 

" EVERY  particular  interest,"  said  Mr.  Madison,  in  the 
Convention  of  1787,  '/whether  in  any  class  of  citizens,  or 
any  description  of  States,  ought  to  be  secured  as  far  as 
possible.  Wherever  there  is  danger  of  attack,  there  ought 
to  be  given  a  constitutional  power  of  defence.  But  he 
contended  that  the  States  were  divided  into  different 
interests,  not  by  their  difference  of  size,  but  from  other  cir 
cumstances;  the  most  material  of  which  resulted  partly 
from  climate,  but  principally  from  the  effects  of  their  hav 
ing  or  not  having  slaves.  These  two  causes  concurred  in 
forming  the  great  division  of  interests  in  the  United 
States.  It  did  not  lie  between  the  large  and  small  States. 
It  lay  between  the  Northern  and  Southern ;  AND  IF  ANY 

DEFENSIVE  POWER  WERE  NECESSARY,  IT  OUGHT  TO  BE  MUTU 
ALLY  GIVEN  TO  THESE  TWO  INTERESTS."*  In  this  opinion 
of  the  leading  member  from  Virginia,  the  leading  member 
from  Massachusetts  fully  concurred.  For  Mr.  King  "  was 
fully  convinced  that  the  question  concerning  a  difference 
of  interest  did  not  lie  where  it  had  been  hitherto  discussed, 
between  the  great  and  the  small  States,  but  between  the 
Southern  and  the  Eastern.  For  this  reason  he  had  been 
willing  to  yield  something,  in  the  proportion  of  represen 
tation,  for  the  security  of  the  Southern."  f  That  is,  for 
the  protection  of  the  Southern  interest,  he  had,  as  we  have 
seen,  been  willing  to  vote  for  the  fractional  representation 
*  The  Madison  Paper?,  p.  1006.  f  Ibid,  p.  1057. 


IS   DAVIS    A    TRAITOR?  259 

of  slaves.    Such  was,  indeed,  the  opinion  of  the  Convention. 

But  while  the  legislators  of  1787  agreed  in  this  opinion, 
they  looked  into  the  future  with  very  different  eyes. 
Considered  as  political  prophets,  they  may,  in  fact,  be 
divided  into  three  classes. 

At  the  head  of  the  first  class,  there  stands  James  Madi 
son,  "the  father  of  the  Constitution."  Seeing,  as  he  did, 
that  the  great  difficulty  before  the  Convention  was  to  ad 
just  the  antagonism  between  the  North  and  the  South, 
he  must  have  known  that  the  perpetuity  of  the  new  Union 
would  depend  on  the  manner  in  which  this  difficulty 
should  be  settled  by  their  labors.  Just  before  the  meeting 
of  the  Convention,  indeed,  this  great  antagonism  had 
given  birth  to  a  tremendous  conflict  between  the  North 
and  South,  by  which  the  Union  was  shaken  to  its  founda 
tions.  Hence,  Mr.  Madison  had  good  reason  to  fear  the 
violence  of  this  antagonism  for  the  future;  and  he  did  fear 
it.  For  he  tells  us,  that  there  ought  to  be  given  a  con 
stitutional  power  of  defence  to  each  of  these  sections; 
so  that  neither  could  take  advantage  of  the  other. 

He  hoped,  he  fancied,  he  predicted  that  this  had  been 
done.  The  South,  he  said,  will  soon  have  a  majority  in 
the  House  of  Eepresentatives,  in  consequence  of  the  rapid 
increase  of  her  population;  by  which  she  will  hold  a  check 
on  the  power  of  the  North.  But  this  adjustment  of  the 
great  difficulty  in  question  rested  on  the  unstable  and 
fluctuating  basis  of  population.  It  soon  proved  to  be  a 
foundation  of  sand.  The  hope  and  the  prediction  of  Mr. 
Madison  soon  appeared  to  have  been  a  delusion  and  a 
dream.  He  staked  the  freedom,  the  safety,  and  the  happi 
ness  of  the  South,  on  the  happening  of  a  future  event, 
which  never  came  to  pass. 

Indeed,  he  did  not  urge  his  plan  for  the  adjustment  of 
the  formidable  antagonism  in  question ;  because,  as  he 
said,  it  suggested  a  difficulty  which  was  too  apt  to  aris 
of  itself.  It  was,  therefore,  never  adjusted  at  all,  on  ai 


260  IS    DAVIS    A    TRAITOR? 

solid  foundation,  or  secure  principle;  and,  consequently,  it 
did  continue  to  arise  of  itself,  and  disturb  the  new  Union 
with  convulsions,  from  the  beginning  of  its  career  to  the 
grand  explosion  of  1861. 

Mr.  Madison  always  feared  the  effects  of  this  great  and 
imperfectly  adjusted  antagonism  between  the  North  and 
the  South.  It  seems,  indeed,  as  if  he  wished  to  hide  it  from 
his  own  eyes,  as  well  as  from  those  of  the  people.  It  is  a 
very  remarkable  fact,  that  although  in  the  secret  Conven 
tion  of  1787,  he  pronounced  the  antagonism  between  the 
Northern  and  the  Southern  States  the  greatest  of  all  the 
difficulties  they  had  to  deal  with';  yet  when,  in  The  Fed 
eralist,  he  enumerated  the  difficulties  the  Convention  had 
to  encounter,  no  allusion  whatever  is  made  to  this  stupen 
dous  one.  He  seems  to  have  imagined,  that  since  it  is  so 
apt  to  arise  of  itself,  the  less  that  is  said  about  it  the  bet 
ter.  This  would,  no  doubt,  have  been  very  wise  and 
prudent,  if  a  great  danger  might  be  remedied  by  simply 
closing  one's  eyes  upon  its  existence. 

Nothing  more  easily  disturbed  his  patience,  than  any 
allusion  to  the  great  danger  created  by  the  fearful  antago 
nism  in  question.  In  The  Federalist, — how  unlike  his 
usual  style! — he  pours  forth  the  folio  wing  strain  of  lachry 
mose  philanthropy  or  patriotism:  "Hearken  not  to  the 
unnatural  voice,  which  tells  you  that  the  people  of  Amer 
ica,  knit  together  as  they  are  by  so  many  chords  of  affec 
tion,  can  no  longer  live  together  as  members  of  the  same 
family;  can  no  longer  continue  mutual  guardians  of  their 

mutual  happiness No,  my  countrymen,  shut  your 

ears  against  this  unhallowed  language.  Shut  your  hearts 
against  the  poison  which  it  conveys.  The  kindred  blood 
which  flows  in  the  veins  of  American  citizens,  the  mingled 
blood  which  they  have  shed  in  the  defence  of  their  sacred 
rights,  consecrate  their  union,  and  excite  horror  at  the 
idea  of  their  becoming  aliens,  rivals,  enemies."* 

*  No.  xiv. 


IS    DAVIS   A    TRAITOR?  261 

Yet,  iii  spite  of  all  this,  Mr.  Madison  himself  must  have 
had  serious  misgivings  with  respect  to  his  beautiful  dream 
of  a  perpetual  peace.  For  he  knew,  as  we  have  seen,  that 
there  was  danger  of  a  collision  between  the  North  and 
the  South.  It  is  certain,  that  the  voice  which  he  pro 
nounced  unnatural,  was  the  voice  of  truth.  For  Ameri 
can  citizens  did  become  aliens,  rivals,  enemies;  and  min 
gled  their  blood  far  more  freely  and  fearfully  than  they 
ever  had  done  in  the  defence  of  their  common  rights.  But 
Mr.  Madison  knew,  that  in  order  to  secure  the  adoption 
of  the  new  Union,  it  would  be  necessary  to  persuade  the 
people,  that  the  very  first  condition  of  such  a  Union  would 
always  obtain ;  namely,  u  a  sufficient  amount  of  sympathy 
among  its  populations."  Hence,  perhaps,  his  dream  of 
peace  was  not  all  a  dream,  but  partly  rhetoric. 

The  second  class  of  prophets  seems  to  have  been  with 
out  a  head.  Indeed  it  may,  perhaps,  be  doubted,  whether 
they  spoke  as  prophets,  or  as  diplomatists.  It  is  certain, 
that  they  encouraged  the  notion  of  Mr.  Madison  and  other 
Southern  legislators,  that  the  South  would  certainly  have 
a  majority  in  the  House  of  Eepresentatives.  Several  of 
the  most  influential  of  the  Northern  legislators  seemed 
quite  confident  that  such  would  be  the  good  fortune  of  the 
South ;  and  none  more  so  than  Mr.  Gouverneur  Morris. 
But  were  they  always  sincere  in  that  belief?  Or  did  they 
sometimes  flatter  the  false  hopes  of  the  South,  in  order  to 
be  able  to  drive  a  better  bargain  with  her?  No  finite 
mind  can,  perhaps,  answer  these  questions;  or  tell  whether 
the  legislators  in  question  always  spoke  as  prophets,  or 
sometimes  as  diplomatists.  It  is  certain,  that  the  expec 
tation  held  out  to  the  South,  that  she  would  be  able  to 
control  one  branch  of  Congress,  was  the  promise,  the 
prospect,  the  bait,  by  which  she  was  entrapped  into  the 
new  Union;  into  that  tremendous  dead-fall,  by  which,  in 
1861,  she  was  crushed  to  the  earth.  Patrick  Henry  stood 
at  the  head  of  the  third  and  last  class  of  prophets. 


262  18   DAVIS    A   TRAITOR? 

No  man  ever  more  clearly  foresaw,  or  more  confidently 
predicted,  the  future,  than  did  Patrick  Henry  the  calami- 
which  have  fallen  on  his  beloved  Virginia.  With  some  of 
the  passages  from  this  class  of  prophets,  I  shall  conclude 
this  little  book. 

General  Pinckney  of  South  Carolina,  declared,  that  "if 
they  [the  Southern  States,]  are  to  form  so  considerable  a 
minority,  and  the  regulation  of  trade  is  to  be  given  to  the 
General  Government,  they  will  be  nothing  more  than  over 
seers  for  the  Northern  States" 

In  like  manner,  Mr.  Williamson,  of  North  Carolina, 
said:  "The  Southern  interest  must  be  extremely  endan 
gered  by  the  present  arrangement.  The  Northern  States 
are  to  have  a  majority  in  the  first  instance,  with  the  means  of 
perpetuating  iY."f 

George  Mason  said:  "He  went  on  a  principle  often  ad 
vanced,  and  in  which  he  concurred,  that  a  majority,  when 
interested,  would  oppress  the  minority.  This  maxim," 
[than  which  none  is  more  just,]  "had  been  verified  in  the 
Legislature  of  Virginia.  If  we  compare  the  States  in  this 
point  of  view,  the  eight  Northern  States  have  an  interest 
different  from  the  five  Southern  States;  and  have,  in  one 
branch  of  the  Legislature,  thirty-six  votes  against  29,  and 
in  the  other  in  the  proportion  of  eight  to  three.  The 
Southern  States  had  therefore  grounds  for  their  suspi 
cions."  J 

Mr.  Henry  said:  "But  I  am  sure,  that  the  dangers  of 
this  system  are  real,  when  those  who  have  no  similar  inter 
ests  with  the  people  of  this  country,  p.  e.  Virginia  and  the 
South,]  are  to  legislate  for  us — when  our  dearest  interests 
are  to  be  left  in  the  hands  of  those  whose  advantage  it 
will  be  to  infringe  them."  § 

In  the  same  Convention,  Mr.  Grayson,  after  declaring 
that  it  was  a  struggle  between  the  North  and  the  South 

*  Madison  Papers,  p.  1058.         f  Ibid,  p.  1058.         J  Ibid,  p.   1387. 
g  Elliot's  Debates,  vol.  iii,  p.  289. 


IS    DAVIS    A    TRAITOR?  263 

for  empire,  proceeded  to  say,  "Are  not  all  defects  and 
corruptions  founded  on  an  inequality  of  representation  and 
want  of  responsibility  ?  My  greatest  objection  is,  that  it 
will,  in  its  operation,  be  found  unequal,  grievous  and  op 
pressive.  If  it  have  any  efficacy  at  all,  it  must  be  by  a 
faction  of  one  part  of  the  Union  against  another.  If  it  be 
called  into  action  by  a  faction  of  seven  States,  it  will  be 
terrible  indeed.  We  must  be  at  no  loss  how  this  combina 
tion  will  be  formed.  There  is  a  great  difference  of  cir 
cumstances  between  the  States.  The  interests  of  the 
carrying  States  are  strikingly  different  from  those  of  the 
productive  States.  I  mean  not  to  give  offence  to  any  part 
of  America,  but  mankind  are  governed  by  interest.  The 
carrying  States  will  assuredly  unite  and  our  situation  will 
then  be  wretched  indeed.  We  ought  to  be  wise  enough 
to  guard  against  the  abuse  of  such  a  government.  Re 
publics,  in  fact,  oppress  more  than  monarchies." 

"The  voice  of  tradition,"  said  Henry,  "I  trust  will  inform 
posterity  of  our  struggles  for  freedom.  If  our  descend 
ants  be  worthy  of  the  name  of  Americans,  they  will  pre 
serve  and  hand  down  to  the  latest  posterity,  the  transac 
tions  of  the  present  times,  and  though  I  confess  my  ex 
planations  are  not  \vorth  the  hearing,  they  will  see  'I 
have  done  my  utmost  to  preserve  their  liberty."'  Tyler 
responded,  "I  also  wish  to  hand  down  to  posterity  my  op 
position  to  that  system.  British  tyranny  would  have 
been  more  tolerable." 

THE    END. 


ERRATA. 

Page  8,  line  28,  for  "what"  read  which. 

"    20,  "  34,  omit  second  reference,  "tlbid,  p.  109." 

"    20,  "  35,  for  |1  read  f- 

"    25,  "  18,  for  "  Foote's  "  read  Foot's.    Also  on  page  61. 

"    42,  "  33,  for  "  celo "  read  ccBlo. 

"    43,  "  12,  "Governor"  read  Gouvcrneur;  and  in  other  places  where 
the  name  of  Gouverneur  Morris  is  incorrectly  printed. 

"    59,  "  14,  for  "  Upsher "  read  Upshur. 

"    73,  "  8,  for  "  speciflation  "  read  specification, 

"    81,  "  22,  for  "district"  read  distinct. 

"    83,  "  21,  for  "least"  read  last. 

"    89,  "  24,  for  "  partial  "  read  patient. 

"    97,  "  9,  for  "delagated"  read  delegated. 

"106,  "  22,  for  "  countries  "  read  counties. 

"  108,  "  7,  for  "  peeple  "  read  people. 

"110,  "  32,  for  "  temporory  "  read  temporary. 

"  119,  "  5,  for  "people"  read  People. 

"  193,  "  11,  for  "thencefore"  read  henceforth. 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 

This  book  is  due  on  _ 

,or 


JHN24-66     5  Re  f 


LD  21  A— fin™  i  r>  i/>- 


• 


